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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read PAB Security Pty Ltd v Mahina and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NSWCA 125
Decision Date: 27 May 2009

CaseChat Overview and Summary

PAB Security Pty Ltd (the appellant) appealed a decision of the primary judge in favour of the respondent, Mahina. The dispute concerned allegations of negligence arising from an incident where the respondent, a security guard employed by the appellant, was shot outside a nightclub. The respondent contended that the appellant failed to provide a safe system of work, leading to his injury.

The central legal issues before the Court of Appeal were whether the primary judge erred in accepting and rejecting certain evidence, particularly concerning a threat made by a member of a group engaged in a fight outside the nightclub. The court was required to determine if the respondent was the specific target of this threat, whether it was reasonably foreseeable that the group or another person on their behalf would return and shoot the respondent, and if the appellant breached its duty of care by not rotating the respondent inside the nightclub to perform security duties. Furthermore, the court had to consider whether the respondent would have been shot in any event, even if he had been rotated inside.

The Court of Appeal considered the evidence presented and affirmed the primary judge's findings regarding the foreseeability of the risk of injury to the respondent. The court reasoned that the appellant owed a duty of care to its employees to take reasonable steps to prevent foreseeable harm. The failure to rotate the respondent inside the nightclub was found to be a breach of this duty, as it exposed him to a foreseeable risk of harm from individuals who had previously caused a disturbance. The court also addressed the issue of causation, concluding that the breach of duty was causative of the respondent's injuries.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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