PAB Security Pty Ltd v Mahina

[2009] NSWCA 125

New South Wales

Court of Appeal

CITATION:	PAB Security Pty Ltd v Mahina [2009] NSWCA 125
HEARING DATE(S):	12 May 2009
JUDGMENT DATE:	27 May 2009
JUDGMENT OF:	Tobias JA at 1; McColl JA at 87; Macfarlan JA at 88
DECISION:	Appeal dismissed with costs
CATCHWORDS:	TORTS – Negligence – Proof of negligence – Weight and credibility of evidence – Whether primary judge erred in acceptance and rejection of certain evidence – Security personnel and group of men engaged in fight outside nightclub – Member of group issued threat to return and kill – Whether respondent was specific target of threat – Duty of care by employer to respondent to provide a safe system of work and avoid risk of injury – Whether reasonably foreseeable that group of men or another person on their behalf would return and shoot respondent – Whether breach of duty of care by not rotating respondent inside nightclub to perform security duties – Causation – Whether respondent would have been shot in any event had he been rotated inside nightclub
LEGISLATION CITED:	None
CASES CITED:	Bendix Mintex v Barnes (1997) 42 NSWLR 307 Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 English v Rogers [2005] NSWCA 327; (2005) Aust Torts Reports 81–800 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Gittani Stone Pty Ltd v Pavkovic [2007] NSWCA 355 March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269 Sheather v Country Energy [2007] NSWCA 179; (2007) Aust Torts Reports 81–901 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
PARTIES:	PAB Security Pty Ltd Soisaia Mahina
FILE NUMBER(S):	CA 40211/08
COUNSEL:	A: A. Coleman R: J Gormly SC / G Wilson
SOLICITORS:	A: Shearman Lawyers, Sydney R: Keddies LItigation Lawyers, Sydney
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 2447/05
LOWER COURT JUDICIAL OFFICER:	Garling DCJ
LOWER COURT DATE OF DECISION:	18 April 2008

CA 40211/08
DC 2447/05

TOBIAS JA
McCOLL JA
MACFARLAN JA

Wednesday 27 May 2009

PAB SECURITY PTY LIMITED v SOISAIA MAHINA

Judgment

1 TOBIAS JA: The respondent, Mr Soisaia Mahina, is a gentleman of Tongan extraction who has worked as a security guard since 2001. On the evening of 29 June 2002 he was on duty outside Rogues Night Club (the Club) in Oxford Street, Sydney near the intersection of Oxford and Riley Streets. For the purposes of the present litigation it was common ground that the appellant, PAB Security Pty Limited, who had been contracted to provide security services at the Club, was the employer of the respondent.

2 In circumstances which I will relate in more detail below, at approximately 2.45am on 30 June 2002, whilst engaged in providing security services outside the Club at its Oxford Street entrance, the respondent was shot three times thereby sustaining significant injuries. He instituted proceedings in the District Court claiming damages for the alleged breach by the appellant of its duty to take reasonable care to provide him with a safe work environment including protecting him from random or unpredictable criminal behaviour by a third party.

3 The appellant admitted that it owed the respondent a duty of care but denied that it had breached that duty or, if it had, that that breach had caused or contributed to the respondent being shot.

4 On 18 April 2008 his Honour Judge Garling found in favour of the respondent and awarded him damages in the sum of $322,171. The appellant appeals to this Court with respect only to his Honour’s findings on the issue of liability.

The undisputed facts

5 The respondent had worked at the Club for about six months prior to the subject incident. He was highly regarded by his supervisor, Mr Dion Mooney, a gentleman of Maori extraction who was taller and larger than the respondent. Mr Mooney described the respondent as “a great guard” who was extremely reliable and, in particular, someone upon whom he could rely if there was any trouble. Mr Mooney particularly chose the respondent to secure the entrance to the Club because he was both diplomatic and balanced and able to communicate with difficult people but could also handle himself in a fight.

6 The respondent came on duty at about 9pm on 29 June 2002. He was one of three persons performing security duties outside the entrance to the Club. The others were Mr Mooney and a Mr Joel Tahi, who was also of Tongan extraction. All three were dressed in an identical manner comprising a black shirt, black pants and black shoes.

7 Apart from the three men performing security duties at the entrance to the Club that night, there were others performing security duties of a different kind inside the Club. It was a busy night and patrons were required to queue for entry in two lines of which the first was for VIP patrons and the second for non-VIP patrons.

8 The three men working at the entrance to the Club performed different tasks. Mr Mooney checked the ID of potential patrons to verify their age, their level of sobriety and their standard of dress. Mr Tahi was using a clicker to count the number of patrons leaving and entering the Club to ensure that at any given time the number of persons inside did not exceed the maximum permissible by law. The respondent was using a metal scanning device to scan prospective patrons to ensure that they were not carrying any weapons or other dangerous or undesirable objects.

9 At about 12.30am on 30 June 2002 a scuffle developed between Mr Mooney and several young men of Middle Eastern or Lebanese appearance whom he had endeavoured to turn away from entering the Club (the group). According to Mr Mooney there were approximately six men in the group who looked fit and strong and who had exhibited aggressive tendencies when standing in the queue waiting to enter the Club. The respondent came to Mr Mooney’s assistance and punches were exchanged. In particular, the respondent had buttons ripped from his shirt and sustained red marks on his face. The respondent returned the punches and at least one of the men in the group sustained a bloody face. The scuffle eventually broke up after about 10 minutes and the men were told to leave. When they were a short distance away one of the group threw a bottle, which struck Mr Tahi.

10 A short time later the respondent was spoken to by one of the barmen whereupon he left the entrance to the Club and walked around to Riley Street where his new motor vehicle was parked. He found that it had been badly damaged – the front and rear windows had been smashed, as had the bonnet and roof.

11 After returning to the entrance to the Club, three men, including the respondent, remained on duty until about 2.40am when a male, dressed in a long black coat with a black beanie pulled down to his eyebrows, approached the respondent, stared at him and then pulled out a handgun from inside his coat and started shooting at him. Six shots were fired of which three struck the respondent in his left elbow, his chest and his left buttock. The police and ambulance were called and the respondent was taken to St Vincent’s Hospital where he underwent surgery. As it turned out, the shooter was not one of the men involved in the original scuffle but the brother of the man who had been punched by the respondent and who had left the scene with a bloody face.

The disputed facts

12 It was common ground that after the scuffle between the three security guards and the group of men, one of them issued a threat as he ran off. However, there was a dispute as regards to whom that threat had been directed. The respondent’s evidence-in-chief with respect to this threat was as follows:

“Q. What did they say?
A. Some of their friend, they tried to call them but they call out they want – they’re going to – they’re going to gets me.
Q. ‘They’re going to get me’?
A. Yeah, they’re going to come back and get to me.
Q. Were you looking at him when he said it?
A. That’s right.
Q. Was he looking at you?
A. That’s correct.
Q. Was he physically doing anything?
A. Yes, I think he just wanted to fight but some of their friend just tried to hold them back.
Q. What was his manner when he was saying ‘I am going to come and get you’?
A. It was very aggressive and – very, very angry.”

13 The respondent was cross-examined in a manner that sought to attack his credibility. Relevant to that line of cross-examination was the fact that the police interviewed the respondent in hospital on 1 July 2002, being the day after he was shot. An ERISP transcript of that interview was admitted into evidence. The interview between the respondent and Senior Constables Eade and Watt took place at 5.15pm. The interviewers recorded that the respondent had been shot a number of times and was obviously in some pain. However the respondent indicated that he was happy to tell the police officers what had happened and that he felt able to do so. Nevertheless, in cross-examination with respect to this interview, he stated that he was in a lot of pain and was on morphine – an assertion that was not challenged.

14 In the interview the respondent described the fact that during the first incident Mr Mooney had been attacked, that he had jumped in to help him and that he had attempted to hold Mr Mooney’s attacker who had then hit him whereupon the respondent “punched him in the face”.

15 The respondent also gave evidence in chief that at the time he observed the damage to his car, he had seen the same men who had been involved in the earlier scuffle and, when asked what they had said, responded “They said they’re going to come – come back and kill me. They’re going to come back and kill me”. He then returned to the Club’s entrance and had a conversation with Mr Mooney in the following terms:

“Q. What did you say to him?
A. I said to him that I was fear for my life and I want – I want to go home.
Q. What did he say to you?
A. He refused to say no.”

It is understood that the intended meaning of the second answer above is that Mr Mooney had refused the request of the respondent to go home, in that he had said “no”.

16 In his interview with the police the respondent was asked whether he had seen the men in question damage his car, to which he responded in the negative although he stated that he was sure that it was them and that “after they left they said they’re going to come back”. In cross-examination it was suggested to him that the only threat that he had remembered being made on 1 July 2002 when he was interviewed was the one made to him when the group had left the Club, to which he responded that there had been two threats. The following exchange then took place:

“Q. What I’m suggesting to you, Mr Mahina, is that when you were telling the police what had happened, only one day after it had happened, you didn’t say anything at all about there being a second threat, you only mentioned one threat, you see that that’s what it says in the statement?
A. Yeah.
Q. And you didn’t say anything about you personally being threatened, it was just that they said they’re going to come back, right? That’s what you told the police?
A. That’s right, yep.”

17 The respondent was also referred to his answer to Question 43 in the ERISP which was related to the original fight between the three security guards and the group. That question and the respondent’s answer were as follows:

“Q. Were, were they talking, did they say anything to you while, before the fight or during the fight? Was there any conversation?
A. No, no conversation because they upset because we stopped them. The minute I stopped them, they just started throwing punches and um, so we keep working. I do the scanner. I said to the other two guards just, you know, keep watching my back, you know, ‘cause in case they’re coming back. So I keep scanning. While I was scanning and ah, I turn around there was guy walking up. I just like in shock because I just turn around, he was standing there. So I, probably the distance is about four metre, three, four metres away from me. He was wearing a black beanie, he was in middle eastern appearance.”

18 It was then suggested to the respondent that he never told the police anything about the second threat being made to him personally when he was inspecting his damaged car. To that he responded that he could not remember, that he was telling the police whatever came into his mind at the time. The following exchange then took place:

“Q. When the Middle Eastern men, as you say, said that they were going to come back, that’s the first threat I’m talking about, not the car. That threat was made to the three of you, wasn’t it? It was made to you and to Dion who’d started the fight, and to Joe[l] who joined in as well.
A. Yes, but I believe it was directed at me.
Q. Do you think it was directed at you?
A. That’s right.
Q. You didn’t think that on 1 July 2002, that it was directed at you, did you?
A. No.
Q. You thought at that time that the threat had been directed to the three of you didn’t you?
A. That’s right.
Q. Because you said, in answer to question 85 on page 17 – have you got that page?
A. Yeah.
‘Q. Do you know why you were being singled out as being shot?
A. Maybe I was thinking because – I don’t know. I still try to figure out because to me, to the best of my knowledge, you know, the guy he was – we – we three of us involved in a fight. So the guy who was coming shooting, probably he’s come to shoot three of us or something. But because he was just come and shoot at me, I still don’t understand because if he was to come, the three of us, he can shoot three of us because we both three stand there, you know, but he’s come and – and I was the target. So I still don’t understand.’ “

19 The thrust of this cross-examination was to attempt to establish that the threat made by one of the men in the group as they left the scene after the struggle outside the Club was not directed personally toward the respondent but to all three security guards. It was suggested to the respondent that this must be so given that he was unable to explain at the police interview why the shooter had only targeted him. The following exchange challenged the respondent’s evidence on this issue:

“Q. This suggestion that you were a specific recipient of the threat as opposed to the three of you is something that’s been developed by you to try and make the security company liable for your damages, isn’t it?
A. No.”

20 Mr Mooney gave the following evidence-in-chief:

“Q. When the fight or scuffle came to an end, did you hear any of the men involved in the scuffle who weren’t security guards make any form of threat?
A. Yes.
Q. What did you hear?
A. They just called us all sorts of names, they said they’d come back and kill us.
HIS HONOUR: Q. Come back and?
A. Kill us, yeah.
COLEFAX: ‘Kill us’, he said.
HIS HONOUR: Thank you.
COLEFAX
Q. How many of them do you recall making threats of that kind?
A. Pretty much all of them.
Q. As you heard it, were the threats made to any particular security guard or to the group?
A. Pretty much to all of us, the group.”

21 A little later the following exchange occurred:

“Q. He says that one of them said to him, ‘We’re going to come back and get you’. I take it you wouldn’t say that didn’t happen?
A. I – I may have not heard that – actually saying to Alex. I heard the threats when they were on Oxford Street but I didn’t hear that specific threat made to Alex.
Q. But it could have been made?
A. Possibility. You know, in – in the heat of the moment when things were going around, yeah, that – that’s a big possibility.
Q. Certainly what you heard was, ‘ We’re going to come and get you. We’re going to kill you ’. Is that right?
A. Yeah. Yeah, for me. Yeah, for me and the rest of the guys, that’s what I heard when they were on Oxford Street.” (Emphasis added)

22 That part of the above exchange that I have emphasised is consistent with the respondent’s evidence-in-chief in the exchange set out at [12] above and with his evidence to which I have referred at [15] above.

23 The second major factual dispute related to the respondent’s evidence-in-chief that after the scuffle and after the group had run off, he was “really scared” and that he went to Mr Mooney as his supervisor and head of security and said: “I want to rotate inside”, a request which was refused. The following exchange then occurred:

“Q. Why did you want to rotate inside?
A. I was – I was very worried because they way I looked at these boys they – they very aggressive and – and I was fear for my life.

Q. Did you tell Dion what they said?

A. Yes. I told Dion they said they are going to come back – they are going to come back and get me.
Q. When Dion refused to rotate you what did you then do?
A. He told me, ‘Don’t worry’. He thought – he get up and went straight to a cupboard and --
Q. A cupboard?
A. Yes.
Q. Inside the club?
A. Inside the club, next to the DJ area and he grabbed some baseball bats. There was about four of them and he bring it and put it on the left-hand side the main entry to the club and he said to me ‘Don’t worry, if they come back we will – we’ve got something to fight against them.’
Q. What did you then do? You continued back at work?
A. I was continuing working.”

24 Although the respondent had said in chief that when he saw the group near his damaged car, they had said they were going to come back and kill him, he did not convey that threat to Mr Mooney but he did tell him again after the car episode that he was in fear for his life and wanted to go home. This request was also refused.

25 In cross-examination the respondent was challenged with respect to his evidence that he had requested Mr Mooney to rotate him as there had been a threat to kill him. He agreed that in his record of interview with the police on 1 July 2002 he had not referred to his request to Mr Mooney that he be rotated. The exchange relating to this issue was as follows:

“Q. You didn’t say to the police officers, ‘And I asked Mr Mooney if I could be rotated into the club’. You didn’t tell them that, did you?
A. Yeah. Whatever comes to my mind at that time, that’s exactly what I was telling the police.
Q. Of course, Mr Mahina, if in fact you had asked Mr Mooney, if you could be rotated into the club, and as a consequence of not being rotated you were shot, you wouldn’t have forgotten that you’d asked Mr Mooney to be rotated into the club, would you?
A. I did ask him; that was after the brawl.
Q. If that had happened, Mr Mahina, if you’d asked him, I suggest to you when you were giving the police as much information as you could about what happened on the night, you would have told the police that I’d asked to be rotated and Mr Mooney didn’t do it.
A. Yeah.
Q. I’m suggesting to you because you didn’t tell the police about this request for rotation, it never happened.
A. Do you think so?
Q. I’m suggested to you, Mr Mahina, you never asked Mr Mooney to be rotated into the club.
A. I did ask.
Q. You didn’t tell the police that, did you?
A. I can’t remember. I think I did … (not transcribable).”

26 The respondent was also challenged on his evidence that after he returned from observing his damaged car, he asked Mr Mooney if he could go home, it being suggested to him (and he agreeing) that he had not told the police of that alleged conversation in his interview on 1 July. It was also suggested to him that he had never told his solicitor about wanting to go home, which he denied, and that when he saw a Dr Fisher, he did not tell him of this second threat that had been made to him, to which he replied: “he never asked”. The fact was put to him that he had not told any of the doctors that he had been the subject of any threats.

27 The relevance of that questioning is a little difficult to understand given that on the one hand it was never part of the respondent’s case that he had told Mr Mooney about the second threat that had been made to him when he was inspecting his damaged car and, on the other, Mr Mooney accepted that a threat to kill was made after the scuffle. With respect to the latter, the only difference between the two accounts given was that the respondent’s evidence was that the threat was directed at him personally whereas Mr Mooney’s evidence was that it was directed at all three of the security guards involved in the scuffle.

28 Mr Mooney in his evidence-in-chief denied that the respondent had asked to be rotated into the Club at any time during the night in question, that he had asked to go home or that he had gone to a cupboard and produced four baseball bats. When asked whether there were any baseball bats at the Club he answered in the negative. When asked whether he was aware of the damage that had been inflicted upon the respondent’s car before he was shot, he again answered in the negative. However, in cross-examination he conceded that he was aware that the vehicle had been damaged. He also conceded that he would not be surprised if, having seen his brand new car badly smashed, the respondent had requested to go home. The recanting of his evidence that he had not seen the respondent’s smashed car took place in the following exchange:

“Q. At some time shortly after this settled down, one of the barmen came out to the doors and told you security officers,
Alex in particular, that his car was getting smashed, do you agree with that?
A. I think – I think so, I’m not sure. I’m not sure.
Q. The police came later to look at that car, didn’t they?
A. I think they did.
Q. Yes, and I take it at some stage you went and had a look yourself?
A. Yeah, I think I did pop around and had a look.
Q. It was bad damage, wasn’t it?
A. Apparently yeah, pretty bad, yeah.
Q. Well, not apparently, you saw it?
A. Yeah, that’s right, it was – yeah, it wasn’t looking good.
Q. You saw it that night?
A. That’s right.
Q. I take it you knew that this was Alex’s brand new first car?
A. I knew it was a brand new car.
Q. He was upset about it, wasn’t he?
A. Anybody would be.
Q. Anybody would.
A. That’s right.
Q. So the barman comes out, do you agree, tells you security officers what’s happening and Alex – you couldn’t leave the queue but I think Alex ran down to the corner to have a look at his car, correct?
A. Correct.
Q. He was there for a little while and then came back again and told you what he seen.
A. I think so, yeah, I think --
Q. It would be absolutely extraordinary if he went down and looked at his car in that state and didn’t come back and tell you what he saw, wouldn’t it?
A. That’s right.
Q. Yes.
A. Yeah, I think he did come back.
Q. Yes, of course he did.
A. Yeah.
Q. He came back --
A. Actually, I think I actually went down and had a look myself.
Q. After that, did you?
A. Yeah.”

29 The issue of the respondent’s request to be rotated was the subject of the following exchange:

“Q. You knew, didn’t you, having seen this badly smashed car that Alex Mahina may be being targeted?
A. Yeah, it’s a possibility.
Q. You knew it that night?
A. Yeah, it’s a possibility.
Q. It seemed, didn’t it, Mr Mooney, that these men might mean business, that is that they might well be dangerous people?
A. Yeah, maybe.
Q. Yes, well, look at it. A fight, a stand, a bottle, violent threats, aggression, anger and a badly smashed new car. It’s pretty bad, isn’t it?
A. Yeah, I guess it is, yeah.
Q. And you didn’t know whether they knew that car was Alex’s or not, did you?
A. I honestly didn’t. I didn’t think they – anybody knew whose car it was, so --
Q. But they might have, mightn’t they?
A. Well, that’s a possibility you can say.
Q. I want to put to you, Mr Mooney, that the only reasonable thing that you could and should have done once you saw that car was to get Alex Mahina out of sight by rotating him inside.
A. Yeah, maybe, I’m not sure.
Q. You’re agreeing with me --
A. Well --
Q. -- are you?
A. -- that was an option, I guess.
Q. But you didn’t, did you? You didn’t do that.
A. No, I didn’t.
Q. Did you not do it because if there was trouble you wanted him there to help you to deal with the trouble?
A. As I have said, I have many guys who could help me with trouble.
Q. But you took a risk with him, didn’t you, by retaining him on the door?
A. We’re all at risk, sir, that night, all of us.
Q. He seemed to be particularly at risk though, didn’t he?
A. Well, if you’re including his car, yeah, maybe. But we’re all at risk.”

30 Mr Mooney was also challenged on his denial not only that he had not gone and obtained baseball bats and placed them by the front door to the Club but also that there were no baseball bats in the Club at all. The following exchange was directed to this issue:

“Q. Do you agree with me that to have baseball bats as a weapon at a nightclub in order to deal with a potential risk, that would have been a wrong thing to do?
A. Absolutely.
Q. There’s really no room for baseball bats in proper security procedures, correct?
A. That’s right.
Q. I’m just going to put this to you shortly, Mr Mooney. I want to suggest to you that after the original fight and the first series of threats, that following a discussion with one or some of your security officers you went inside and got some baseball bats and put them in the corner because you were concerned these blokes might come back?
A. I don’t remember.
Q. You were concerned of course that they might come back, do you agree?
A. I was always concerned.
Q. If they did come back, there was a real potential that it was going to be ugly? Well, we’ve sort of covered that, haven’t we?
A. I think we did. I think we have covered that.
Q. Yes, and you’re agreeing with me?
A. It’s always a possibility.
Q. Do I understand your answer to be that you don’t remember about the baseball bats?
A. That’s correct.
Q. I’m just going to put it to you then, I put it to you that you did go and get some baseball bats from a cupboard and you put them near the door on the night of 29, 30 June 2002?
A. I don’t remember sir.”

31 It is noteworthy that from a flat denial with respect to the baseball bats issue, Mr Mooney’s evidence changed to a “don’t remember”. Ultimately he accepted that the police found the baseball bats behind the entrance door to the Club, which was where, according to the respondent’s evidence, Mr Mooney had placed them.

32 In cross-examination Mr Mooney accepted that although there had been bad incidents in the past, he had not experienced an incident like the one in question. He agreed that he was aware that the group might return and that he was watching out for them. The following exchange took place:

“Q. Let’s just talk about this night, this occasion. On this night, this occasion, you were watching out because you were concerned that they might do exactly what they said they were going to do and come back.
A. Yep, yep.
Q. And if they did come back, they’d have had a chance to go away, work out what they wanted to do, plan it, maybe get weapons, and it could well be a serious incident. Do you agree?
A. That’s a possibility.”

33 Mr Mooney acknowledged that one of the group did call out that they “were going to come back and get you”, which he regarded as a threat to all three of them. Although Mr Mooney said he did not remember that the respondent had expressed concerns that they had said they were going to come back and get him (the respondent), he agreed it was a possibility that the respondent had told him this. However he maintained his denial that the respondent did not request to be rotated, although he accepted that if the respondent had been targeted an appropriate option would have been to remove him as the target by rotating him inside. The following exchange dealt with this issue:

“Q. … Another option of course is remove the target?
A. Yeah.
Q. Rotate them inside?
A. That’s a possibility there.
Q. So that if you thought one of your officers was being targeted, just put them out of sight and put them inside and downstairs where they’re not going to be seen and so the problem’s gone.
A. Yeah, that’s a possibility, yeah.
Q. That was open and available to you on the night of 29 June and 30 June just as it was on any other occasion?
A. That option’s also open.
Q. I suppose there’s a way out option of getting rid of them, sending them home or something like that but that would be a problem, wouldn’t it?
A. Yes.
Q. You’re a person down then?
A. That’s right.
Q. So apart from making peace with them in the queue the only other real option is to rotate them, correct? Get them inside --
A. Yeah.
Q. -- and out of sight?
A. That’s correct.”

Finally, in re-examination Mr Mooney agreed that had the respondent asked to be rotated inside, he would have agreed to do so.

34 The other relevant witness whose evidence was, in part, disputed, was the respondent’s wife who had been out with some girlfriends but had attended the Club to see her husband after the scuffle with the group had occurred. She related what her husband had told her had happened that night. She and a friend went and saw the respondent’s damaged car and when she returned the respondent said to her: “Look, you know, we got into an argument and the boys walked off”. Her evidence then continued in the following terms:

“He goes ‘I didn’t know they had smashed our car but after they’d walked off they went and stood at the top of Oxford Street and chucked bottles and then they threatened and said they were coming back .’ And that’s when he got – someone came and called him and said that our car was being smashed. …” (Emphasis added)

35 I interpose that the primary judge purported to rely upon the above evidence of the respondent’s wife as corroborating his evidence when he summarised the respondent’s wife’s evidence, stating that after she was told about the car she went and had a look at it and then returned and asked more about the brawl. His Honour then recorded that the respondent told his wife “they threatened me and said they were coming back” (my emphasis). The word “me” is missing from the passage of the wife’s evidence which I have recorded in the preceding paragraph.

36 Although counsel corrected the transcript during the course of the hearing, no correction was made to the wife’s evidence by suggesting that the word “me” had been omitted in the transcription. I shall return to this point below.

The primary judge’s findings

37 The primary judge recognised that there was a credibility issue between the respondent and Mr Mooney. He noted that there was a challenge to part of the respondent’s evidence and that of his wife. His Honour stated that he had indicated during the hearing that he would not accept the respondent’s evidence at face value and that he would look carefully at his evidence and the other surrounding and supporting evidence. He made that observation because the respondent had not been totally frank with the various doctors he had seen with respect to previous injuries or accidents that he had sustained, particularly a significant back injury. He had been asked about previous accidents and injuries and as he had not referred to the back injury, that caused his Honour to “carefully look at his evidence”.

38 Notwithstanding the foregoing, his Honour stated that when giving his evidence, the respondent appeared to be a good witness and seemed straightforward as he gave his evidence, as did his wife.

39 With respect to Mr Mooney’s evidence, his Honour noted that it was inaccurate when he denied that he was aware of any damage to the respondent’s car before he was shot and that in relation to his evidence regarding the baseball bats “he was not telling the truth”. Accordingly, for that reason and also as a result of other inaccuracies in his evidence, his Honour indicated that he would have to look at Mr Mooney’s evidence “with great care”.

40 The primary judge then made the following observation with respect to Mr Mooney’s evidence:

“It was submitted that Mr Mooney was a very good witness and I agree he was an impressive man but, as I said, in several areas he did not appear to be either accurate or telling the truth. It seemed to me that the baseball bats were a touchy subject, probably because they really should not have been there. It was a matter which he appeared not to wish to concede, but in the end it was quite obvious that they were there when the police arrived, right where the [respondent] said they were, and they were obviously there because further trouble was either expected or there was a feeling that it may occur.”

41 His Honour then noted that the respondent’s wife’s evidence was also challenged. However, he rejected the submission that her evidence was not reliable for the reasons that he recorded. Having set out the submissions which were said to support the finding of unreliability with respect to the wife’s evidence, his Honour declined to reject it on the bases submitted indicating that she appeared to be “a good, straightforward witness, a lady giving her evidence in a straightforward way”.

42 His Honour referred to the submission that the respondent was an unreliable witness and set out the various grounds relied upon in support of that submission based upon the cross-examination of the respondent which I have recorded above. In particular, reliance was placed on the contents of the respondent’s interview with the police on the day following the incident and on his alleged failure, based on Dr Fisher’s medical report, to give a full history of what had occurred. However, his Honour considered that although the history recorded by the doctor was nowhere near a full description of what had happened but was a rather vague one, it was no doubt sufficient for Dr Fisher’s purposes

“… because what the doctor, in effect, would have been interested in was not whether threats were being made or whether the [respondent] should have been rotated, but what actually happened in the shooting because what they were all looking for, of course, was whether there was any post-traumatic stress disorder which there clearly was.”

43 With respect to the respondent’s interview with the police on 1 July, his Honour said:

“I also accept that when the [respondent] was giving his interview to the police he would have been in considerable pain, he had just been shot the day before, he is obviously being treated with drugs. It would be hard to say that a person in that situation would have the clarity of mind about this incident that he might have had at some time later and as I said, the police, whilst they were very thorough, were seeking to find out who may have done this and I understand that, whilst one may have expected him to say he was threatened, on the other hand it may not have been an important matter to him until he was asked about it in relation to the civil case. In short, for those reasons I am not prepared to reject the evidence he gave on oath.”

44 The primary judge’s ultimate finding with respect to the respondent’s credit was stated in the following terms:

“There was a significant attack on the [respondent’s] credit and, as I said, I have got to look carefully at it. I thought the [respondent] was a good witness, I have identified those areas where the [appellant] argued there was a weakness in the [respondent’s] evidence. However, as I have said, I am not prepared to reject it just for those reasons. I do not believe the question of the threats would have played a big part in the [respondent’s] thinking when he was in hospital, he has been shot and, as I said, he is in pain, taking medication and the police are very interested in who may have shot him. Indeed, everyone was interested in who may have shot him and there was other evidence about visits of people to try and assist.
The history to the doctors I find was unreliable. I do not see anything inconsistent with the [respondent] not giving this version to Dr Fisher and I am also satisfied that the first time these matters would have been raised in depth was when he got legal advice.
It has got to be remembered that when the [respondent] was talking to other people he was not complaining of being threatened, he was complaining of being shot and the threats, in my view, would have, at that stage in his mind, been insignificant compared to the shooting as would the question of rotation.
I accept the [respondent], I accept his version, I accept what his wife said and that backs up the [respondent]. I have indicated why I have doubts about Mr Mooney’s evidence and I am not prepared to totally accept it and I am not prepared to accept that he was not told by the [respondent] that he had been personally threatened, wanted to be rotated and wanted to go home.”

45 In the light of his acceptance of the respondent’s evidence and that of his wife and his rejection of Mr Mooney’s evidence where they conflicted on the disputed issues, the primary judge then made findings that after the altercation he accepted

“that one of the men said they were going to come back and get the [respondent], that that man was looking straight at the [respondent] when it was said, that he was acting in a very aggressive way, he was angry … I accept that the [respondent] was worried and scared and that Mooney went and got the baseball bats and put them behind the Club door where they were found by the police. … I accept that the [respondent] spoke to the supervisor, Dion Mooney, and told him that he was in fear of his life and wanted to go home. That request was refused.
I accept that, after the scuffle, the [respondent] had spoken to the supervisor, Dion Mooney and said ‘I want to rotate inside’. Dion refused that request and I accept that he told Dion that they said they were going to come back and get him. I also find as a fact that the [respondent] was not rotated, was not allowed to go home and the [respondent] spoke to his wife and told her of both of these matters and that later in the morning the [respondent] was shot a number of times.”

46 The primary judge then noted that the respondent’s case was a simple one, namely, that in the circumstances he should have been rotated inside, out of danger, but was not, as a consequence of which he was shot. His Honour’s findings with respect to breach were stated in the following terms:

“I am satisfied it was foreseeable that one or more of those men involved in the brawl, or someone on their behalf, could return to the club and cause serious injury to the [respondent]. That foreseeability arises from the facts set out in relation to the fight that one or more of the men had blood on them, that the supervisor was told that a threat had been made to the [respondent], that these men were aggressive and angry, that whilst there was no direct evidence that these men knew it was the [respondent’s] car, it had to be obvious to Mr Mooney that one or more of those men were so angry and so upset that they decided to damage a car the way they did immediately after leaving the vicinity of the club. Furthermore, it was foreseeable as Mr Mooney obtained baseball bats, put them behind the door of the club, or if he did not someone did, on the basis that there may be more trouble. All of these things would put Mr Mooney, as the supervisor, on notice that there was going to be a problem or there was probably going to be a problem and that, if one or more of these men returned or someone on their behalf, serious injury could occur. I believe that was totally foreseeable.

What could be done about it? What could be done was very simple. You rotate the [respondent] into the club, away from the front door, out of sight. You bring one of the other security officers from the club out to the front. This was a simple but cheap solution. It was not done and in my opinion the [appellant] breached the duty of care to the [respondent] and, as a result of that, the [respondent] was shot and sustained injuries. …”

47 The primary judge then dealt with the issue of causation in the following terms:

“The other argument was that it would be useless just to move the [respondent] inside but, in reality, the three of them should have been moved if that was what was to happen, and that would put the club and the employer in a difficult position. Firstly, I do not accept that argument, I do not see why three others could not have been rotated outside but, leaving that aside, the evidence becomes clear that it was the [respondent] who was the target. There are other arguments, for instance that someone could have come back a week later or some time later and perhaps that could happen, but the more likely scenario is people cool down and, if something was going to happen, it was going to happen that night.”

The issues on the appeal

48 The appellant submitted that there were three issues for determination on the appeal. The first was the scope of its duty of care to the respondent. The second was whether there was a breach of that duty and the third related to the issue of causation. It was accepted that the first two issues overlapped: see Sheather v Country Energy [2007] NSWCA 179; (2007) Aust Torts Reports ¶81–901 at [20]–[23]; Gittani Stone Pty Ltd v Pavkovic [2007] NSWCA 355 at [21] per Hodgson JA; at [79] per Ipp JA.

The issue of scope and breach of duty

49 The appellant accepted the proposition stated by Gleeson CJ in Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 at [26] that

“… there are circumstances where the relationship between two parties may mean that one has a duty to take reasonable care to protect the other from the criminal behaviour of third parties, random and unpredictable as such behaviour may be. Such relationships may include those between employer and employee …”

50 It was nevertheless submitted that in the present case the relationship between the appellant and the respondent was not the normal “run of the mill” employer/employee relationship because the respondent was a security guard or “bouncer” and was therefore at all times exposed to an element of risk in the ordinary carrying out of his work as such. It was thus submitted that a bouncer such as the respondent was routinely subjected to a greater risk of injury than most other members of the community including ordinary employees. Further, there was evidence that bouncers were not infrequently subjected to threats including threats that the makers thereof would return and “get square” in some way for perceived mistreatment, but that those threats were seldom carried out.

51 The difficulty with this submission was that Mr Mooney accepted that the incident that gave rise to the relevant threat was such that the threats were not mild but were the threats of aggressive, angry young men. Although he accepted that people made threats all the time in his line of work and that most of them could be shrugged off, he acknowledged that after the particular threat in question, he was watching out in case those who issued the threat returned to carry it out. Thus, he acknowledged in the exchange referred to in [32] above, that he was watching out because he was concerned that the perpetrators might do exactly what they said they were going to do, that it was possible that if they did come back, having had a chance to work out what they wanted to do, plan it and maybe obtain weapons, they could well cause a serious incident.

52 In essence, there was no suggestion in Mr Mooney’s evidence that he thought that the threat “We’re going to come and get you. We’re going to kill you” was an empty threat or one that he should not take with the utmost seriousness and concern.

53 The seriousness with which Mr Mooney took the threat was illustrated by his Honour’s acceptance of the respondent’s evidence, contrary to that of Mr Mooney, that the latter grabbed four baseball bats and placed them on the left hand side of the main entry to the Club, at the same time saying to the respondent “Don’t worry, if they come back we will – we’ve got something to fight against them”.

54 Although it was submitted that the primary judge did not seem to find that Mr Mooney did in fact move the baseball bats from one location to another in specific response to being told that there had been a serious and individual threat to the respondent alone, in my view it is clear that his Honour accepted the respondent’s evidence on this issue. He rejected that of Mr Mooney, finding that he was not telling the truth when he said that he could not remember if he got the baseball bats and that he had not seen them before the police found them in the location where, according to the respondent’s evidence, Mr Mooney had placed them.

55 Gittani Stone was a case of an employee being shot by another employee after he had left his place of employment. After referring to the passage from the judgment of Gleeson CJ in Modbury Triangle to which I have referred above, McColl JA observed (at [134]) that she understood the Chief Justice’s remark in Modbury Triangle to encompass a duty on the part of an employer to protect employees from the criminal behaviour of fellow employees. However, her Honour, after discussing the relevant authorities, concluded (at [163]) that in each of the cases which she had discussed where the criminal conduct of the assailant was that of a third party, the employers in those cases were found liable because of their failure to implement a safe system of work in circumstances where it was foreseeable that their failure to do so exposed the employee to an increased risk of injury.

56 One of those cases was English v Rogers [2005] NSWCA 327; (2005) Aust Torts Reports ¶81–800 where the plaintiff, a cleaner, and his wife, whose duties required them to work at a hotel in the early hours of the morning, were ambushed by a masked gunman who held them confined, at times tied up, while awaiting the arrival of the hotel manager. When the latter came to the scene he was forced to open a safe containing an amount of money. The gunman escaped but the event was found to have caused the plaintiff psychiatric injury.

57 Mason P, with whom Santow JA and Brownie AJA agreed, held that the plaintiff’s employer was liable for breach of its non-delegable duty of care. The learned President cited, at [70], the decision of the High Court in Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 at [12] where in a joint judgment of the Court (Gleeson CJ, McHugh, Hayne, Callinan and Heydon JJ), the following was stated:

“An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risk of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards.”

58 In the present case, given the terms of the threat with which Mr Mooney agreed, namely “We’re going to come and get you. We are going to kill you”, it was foreseeable that notwithstanding the nature of the respondent’s employment as a “bouncer”, Mr Mooney’s refusal to rotate the respondent involved a risk of injury to him in the event that the perpetrators or someone on their behalf returned to carry out that threat.

59 However the appellant submitted that even if the risk was foreseeable, the reasonable response on Mr Mooney’s part required him to take into consideration the magnitude of the risk and the degree of probability of its occurrence which, so it was contended, was low in respect of each of those factors: cf Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47–48 per Mason J.

60 Given that the primary judge accepted the respondent’s evidence that the threat was directed at him personally, that this was known to Mr Mooney and that the respondent had requested of Mr Mooney that he be rotated because of the threat, it is apparent that not only was the magnitude of the risk high (the threat was that the respondent would be killed), but so too was the probability of its occurrence.

61 Ultimately, the appellant accepted that if the primary judge’s findings of fact stood, the finding of breach of duty was inevitable. This outcome could only be avoided by a successful challenge to his Honour’s credibility findings with respect to the respondent.

62 The appellant submitted that there were three errors on the part of the primary judge in accepting the credibility of the respondent and rejecting that of Mr Mooney. The first was his Honour’s acceptance of the respondent’s wife’s evidence which, he found, supported that of the respondent. His error in so finding, so it was submitted, was that his Honour erroneously found that she had been told by the respondent that “they threatened me and said they were coming back” when her evidence, to which I have referred at [34] above, omitted the word “me”.

63 It may well be that his Honour erred in his particular quotation of the wife’s evidence in this respect. However, the basis of the challenge to the respondent’s wife’s credibility was that she had not told the doctors whom she had seen, including those who had seen her husband in her presence, that her husband had told her that he was so frightened that he had requested either to go home or to be rotated inside. In this context, the following exchange occurred in her cross-examination:

“Q. So you didn’t tell Dr Brown anything, I suggest, or Dr Lee or Dr Morse about any threats being made to your husband that the group would come back?
A. No, I told them.” (Emphasis added)

64 The primary judge accepted the wife’s evidence as reliable, as he was entitled to do. That evidence included the exchange to which I have just referred and which constitutes an assertion by the respondent’s wife that she told the doctors referred to in the question that threats had been made to her husband. In my view it was open to his Honour to accept that the respondent had informed his wife that the perpetrators had directed their threat to him personally.

65 The second basis upon which the respondent’s credit was challenged relates to the police interview, the relevant parts of which I have extracted above. It was submitted that that interview constituted a contemporaneous record which was not given sufficient attention and weight by the primary judge. In particular, given the nature of the threat which, according to the respondent, had been made directly to him, it was inexplicable that in his interview he was unable to understand why he had been singled out as the target by the shooter. The only explanation, it was submitted, was that whilst such threats had been made, they had not been made to the respondent personally. Further, at no point during the ERISP had the respondent stated that after the threat had been made he had asked Mr Mooney to rotate him inside the Club or that he be allowed to go home.

66 In light of the foregoing it was submitted that the primary judge’s downplaying of these omissions in the critical respects set forth in the passage from his judgment which I have recorded at [43] above, cannot be sustained in the absence of evidence as to the type of medication with which the respondent was being treated and its impact on the clarity of his recollections at the time.

67 The respondent’s evidence, which was not challenged in cross-examination, was that not only was he in pain but that he was also on morphine. Whatever the effect of that medication upon the respondent at the time, it was still open to the primary judge to accept, as he did, the respondent’s sworn evidence to the effect that the threat was directed at him personally and that he had responded to it by requesting Mr Mooney to rotate him inside the Club. After all, Mr Mooney agreed in cross-examination that what he heard was: “We’re going to come and get you. We’re going to kill you.”

68 There is no doubt that on the respondent’s evidence, as accepted by his Honour, he believed that that threat was made to him personally as the maker of the threat was, as the respondent said in examination-in-chief, looking at him when he said it. But even if Mr Mooney believed that the threat was directed to all three of them, nevertheless he ought to have appreciated, when the respondent asked to be rotated, that the latter was particularly concerned for his own safety and had, therefore, taken the threat personally. I would therefore reject the appellant’s challenge to the respondent’s credibility based upon his interview with the police on the day following the shooting.

69 The third basis of challenge to the primary judge’s finding that the respondent was a credible witness was based on Mr Mooney’s evidence which I have recorded at [21] above and his response, when asked whether the respondent had said to him, “they said they were going to come back and get me”, that he “didn’t say that to me specifically, no”. In my opinion there is nothing in that answer which would necessarily require his Honour to accept it and reject that of the respondent.

70 It was then submitted that his Honour should have accepted Mr Mooney’s denial that the respondent requested that he be rotated. He said on a number of occasions in cross-examination that had the respondent wanted to be rotated he would have remembered it. It was therefore submitted that it was “glaringly improbable” that Mr Mooney would have forgotten any such request.

71 The appellant acknowledged that the relevant principles relating to a trial judge’s acceptance of the credibility of a witness were those set out in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 where Gleeson CJ, Gummow and Kirby JJ relevantly observed (omitting citations):

“28. … However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
29. That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being ‘incontrovertible’, an appellate conclusion may be reached that the decision at trial is ‘glaringly improbable’ or ‘contrary to compelling inferences’ in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses …”

72 In my opinion the primary judge’s acceptance of the respondent’s sworn evidence and that of his wife on the one hand, and his rejection of that of Mr Mooney when in conflict with that of the respondent on the other, was neither contrary to any “incontrovertible facts” nor to any “uncontested testimony”. Further, his Honour’s acceptance of the respondent’s evidence and his rejection of that of Mr Mooney where it conflicted was neither “glaringly improbable” nor “contrary to compelling inferences”. It follows that the appellant’s challenge to his Honour’s findings with respect to the issue of the respondent’s credibility should be rejected.

73 In its written submissions the appellant submitted that it would not have been a reasonable response of Mr Mooney, even if he had been requested to do so, to rotate the respondent in order to put him out of harm’s way. The reason for this was that had the respondent been rotated, his place at the entrance to the Club would need to have been taken by another security guard who then would have been placed at risk of harm had the perpetrators returned to carry out their threat.

74 It was thus submitted that that was not a reasonable approach or response especially as all of the security guards were dressed alike and a number of them were of Tongan or Islander appearance. However, there was no evidence to suggest that any security guard that replaced the respondent would necessarily have been mistaken for him merely because they were both of similar ethnic appearance. Further, Mr Mooney in re-examination stated quite clearly that he would have rotated the respondent if he had been requested to do so and that, if it were the case that the respondent had been targeted by the threats, his rotation to the inside of the Club was an option that was open to him. At no time did he assert that had he taken up that option he would need to have replaced the respondent with a security guard who may well have been mistaken for the respondent. In my view there is no merit in this submission.

The issue of causation

75 The third issue raised on the appeal was that of causation. Three possibilities were advanced to suggest that even if the respondent had been rotated, the respondent would have been shot in any event. The first was that on any view of the evidence, the intervention of the gunman, coming to the Club and firing six shots with a revolver, was something outside the realm of reasonable foreseeability having regard to what had gone on before. It was submitted that it should be seen as an extreme event not to be anticipated as likely to result from the full force of the respondent’s case. The lack of likelihood that what went before would result in the use of a lethal weapon by a different person some hours later was to be evaluated against the obvious fact that there were likely to be witnesses such as the other bouncers and those waiting to enter the Club as well people leaving it.

76 It seems to me that this submission goes to the question of reasonable foreseeability and, in particular, to the issue of breach rather than the issue of causation. The relevant risk was that the perpetrator of the threat or someone on his behalf, was going to return and kill. This risk indeed materialised although the respondent was badly shot but fortunately not killed. As I have indicated at [11] above the gunman was the brother of one of the men in the group and was not present at the original scuffle. It was ultimately conceded that foreseeability of the nature of the harm in respect of which the respondent was put at risk rather than of the specific method by which the harm was to be inflicted including the identity of the shooter not being one of the group was sufficient to establish foreseeability. A threat to return to kill clearly carried with it the potential use of a lethal weapon whether it be a gun, an iron bar or a knife. The aggression and anger exhibited by the issuer of the threat carried with it the likelihood that if the threat were carried out, the fact that there might be witnesses would not have been a deterrent. In my view, the first point advanced by the appellant on this issue should be rejected.

77 Second, the appellant submitted that if one focussed on the respondent’s fundamental contention that he ought to have been rotated inside and that the gunman would be able to identify him and on his Honour’s view that something serious was going to happen that very night, common sense dictated that sending the respondent inside would not have spared him. All that the gunman needed to do was wait until the respondent inevitably left the Club at the end of his shift.

78 The incident that caused the threat occurred at about 12.30am on 30 June. The gunman arrived outside the Club at approximately 2.45am. The evidence established that the respondent’s shift did not end until 6am. Common sense would indicate that he would not necessarily have left the Club by the front door without first checking whether there was anyone in the vicinity who might be intent on doing him harm. In my view, the appellant’s submission involves nothing more than speculation.

79 At trial it was suggested that the threat might have been carried out a week later, a scenario that was rejected by his Honour for the reasons set out in the passage from his judgment recorded at [47] above. However, this scenario was not repeated on the appeal in either the appellant’s written or oral submissions.

80 Although not included in its written submissions, the appellant submitted orally as a third possibility that Mr Mooney’s evidence established that had a problem arisen later in the evening upon the perpetrator’s return, he would have brought all of the security guards up to the entrance to the Club and that would have included the respondent who would then have been exposed to being shot in any event. In my view there is no merit in this submission.

81 It is true, as Gaudron J observed in Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269 at [31] that:

“… the trier of fact … is entitled to conclude that the act or omission caused the injury in question unless the defendant establishes that the conduct had no effect at all or that the risk would have eventuated and resulted in the damage in question in any event.”

82 Furthermore, as Hodgson JA pointed out in Gittani Stone at [45], in some cases it is very difficult to make detailed findings as to what would have happened in the event that none of the breaches of duty had occurred or in the event of various possible combinations of avoidance of breaches of duty. In those circumstances it is appropriate that the Court should take a robust and common sense approach without attempting to make such detailed findings: see March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506; Bendix Mintex v Barnes (1997) 42 NSWLR 307 at 317.

83 In the same case McColl JA observed (at [165]):

“As to causation, the appellant was liable if its wrongful act or omission resulted in increased risk of injury to the respondent. If that risk eventuated, the appellant’s conduct materially contributed to the injury that the respondent suffered whether or not other factors also contributed to that injury occurring: Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 (at [27]) per McHugh J; approved Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269 (at [31] per Gaudron J, at [127] per Callinan J). Or, as Mason P, said in English v Rogers (at [73]), if the employer fails to take such measures as are necessary to eliminate the risk, and the risk comes home in consequence of the breach, then liability will generally ensue”.

84 There can be no doubt that in the circumstances that prevailed, had the respondent been rotated by Mr Mooney as he had requested, he would not have been shot when the gunman appeared outside the Club. If it is to be suggested that he would have been shot in any event, notwithstanding that he was rotated inside the Club, then there must be a finding to that effect on the balance of probabilities.

85 However, each of the various scenarios to which I have referred above and which were advanced by the appellant in support of the proposition that the respondent would have been shot in any event at some time on 30 June, in my view remain in the realm of speculation and were not established as a matter of probability. Accordingly, his Honour’s rejection of them does not demonstrate error.

Conclusion

86 In my opinion each of the challenges by the appellant to the primary judge’s findings of fact, including his findings on the issue of credibility as well as his findings on breach of duty and causation should be rejected. I would therefore propose that the appeal be dismissed with costs.

87 McCOLL JA: I agree with Tobias JA.

88 MACFARLAN JA: I agree with Tobias JA.

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