Portelli v Tabriska Pty Ltd

[2007] NSWSC 1256

CITATION:	Portelli v Tabriska Pty Ltd [2007] NSWSC 1256
HEARING DATE(S):	16-23, 26-27 April 2007
JUDGMENT DATE :	5 December 2007
JURISDICTION:	Common Law
JUDGMENT OF:	Hislop J
DECISION:	(1) Verdict and judgment for the first, second and fifth defendants. (2) Plaintiff to pay the costs of the first, second and fifth defendants. (3) Verdict and judgment for the cross defendant, with costs, on the amended first cross claim. (4) Verdict and judgment for the cross defendants, with costs, on the amended second cross claim.
CATCHWORDS:	TORT - negligence - personal injury - altercation between patrons in hotel - subsequent fight between those persons in the street - liability of owner/occupier of hotel, licensee and provider of security services for injury occasioned in the fight - no duty or breach.
LEGISLATION CITED:	Civil Liability Act, 2002 Law Reform (Miscellaneous Provisions) Act 1946 Liquor Act, 1982
CASES CITED:	Spedding v Nobles [2007] NSWCA 29 Wagstaff v Haslem [2007] NSWCA 28 Collingwood Hotel Pty Ltd v O'Reilly [2007] NSWCA 155 Smith v Leurs (1945) 70 CLR 256 Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 81 ALJR 1773 Desmond v Cullen (2001) 34 MVR 186 South Tweed Heads Rugby League Football Club Ltd v Cole (2002) 55 NSWLR 113 South Tweed Heads Rugby League Football Club Ltd v Cole [2004] HCA 29 Oxlade v Gosbridge Pty Ltd (Court of Appeal, 18 December 1998, unreported) Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 Sweeney v Boylan Nominees Pty Ltd (2006) 80 ALJR 900 Neindorf v Junkovic (2005) 80 ALJR 341
PARTIES:	Clinton Joseph Portelli (Plaintiff) Tabriska Pty Ltd (First Defendant) Gustav Herstik (Second Defendant) Troy Terrence Gibson (Third Defendant) Daniel David Stephens (Fourth Defendant) Gorton John Lee t/as Elite One National Security Service (Fifth Defendant)
FILE NUMBER(S):	SC 20672/01
COUNSEL:	Dr A S Morrison SC/E. Cox (Plaintiff) G M Watson SC/J C Sheller (First, Second Defendants) No appearance (Third Defendant) C Ryan (Fourth Defendant) A D M Hewitt SC/L Csillag (Fifth Defendant)
SOLICITORS:	Stacks/Goudkamp Solicitors (Plaintiff) Henry Davis York (First, Second Defendants) Lee. Peisley & Foley (Fourth Defendant) Curwoods Lawyers (Fifth Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HISLOP J

Wednesday 5 December 2007

20672/01 CLINTON JOSEPH PORTELLI v TABRISKA PTY LIMITED & ORS

JUDGMENT

Introduction

1 The plaintiff sustained injury at about 4.10 am on 1 August 1998 when he and a companion, Craig Hansen, were involved in a fight with a group of men outside the Aspen Hotel in Jindabyne.

2 Earlier there had been an altercation in the hotel front bar between three members of the group and the plaintiff and Mr Hansen which had resulted in those members of the group being required to leave the premises. The fight occurred some 10-15 minutes later when the plaintiff and Mr Hansen left the hotel and were walking to the plaintiff’s accommodation.

3 The plaintiff’s injuries were significant, and he sought to recover damages for them from the owner and occupier of the hotel (the first defendant), the licensee of the hotel (the second defendant), two of his assailants (the third and fourth defendants), and the supplier of security services to the hotel (the fifth defendant).

4 The proceedings against the fourth defendant were resolved at the commencement of the hearing. The proceedings against the third defendant were discontinued.

5 The plaintiff, in his further amended statement of claim, alleged that the first and second defendants owed a non-delegable duty to take such steps as were necessary for the safety of patrons on and in the vicinity of the premises and that they were vicariously liable for the action or inaction of the fifth defendant in respect of safety and security on the premises.

6 Although the further amended statement of claim alleged a contractual relationship between the first, second and fifth defendants for the provision of security services at the hotel, the nature of any duty owed by the fifth defendant to the plaintiff was not the subject of express pleading.

7 The particulars of negligence which were alleged against the first, second and fifth defendants were:

“(a) Failing to ensure the safety of the plaintiff in circumstances where the defendants knew, or ought to have known, that the plaintiff was at risk of injury;

(b) Failing to summons the Police to the hotel;

(c) Permitting or allowing the plaintiff’s assailants to remain in close proximity to the hotel upon being ejected;

(d) Inviting, permitting, allowing or requiring the plaintiff to leave the defendant’s premises in circumstances where the plaintiff was affected by the consumption of alcohol and at risk of further attack by his assailants;

(e) Failing to warn the plaintiff of the imminent risk of further injury;

(f) Continuing to serve alcohol to the plaintiff’s ultimate assailants when it was known, or ought to have been known, that excessive quantities of alcohol had been consumed by those persons;

(g) Failing to look, or look adequately, on an inspection outside for the presence of the plaintiff’s assailants prior to ushering the plaintiff out of the back entrance;

(h) Failing to take any or any adequate steps to get the plaintiff home or at least clear of his potential assailants;

(i) Failing to call a taxi for the plaintiff;

(j) Failing to properly supervise and/or instruct security personnel so as to deal with the potential threat to the plaintiff;

(k) Failing to provide adequate security on and in the vicinity of the premises.”

8 The first and second defendants denied liability to the plaintiff. In particular, they denied negligence, that they owed the plaintiff a duty of care (non-delegable or otherwise), that they were in breach of any duty of care, that the plaintiff’s injury was caused by negligence on their part, and they denied they were vicariously liable for the action or inaction of the fifth defendant.

9 The fifth defendant also denied liability to the plaintiff. He denied that he owed a duty of care to the plaintiff, or, if he did, that he was in breach of that duty. He also denied that the plaintiff’s injuries were caused by negligence on his part. He alleged that he had provided an employee to the first and second defendants which brought that employee into the service of the first defendant so that the first defendant, not the fifth defendant, was liable for any negligence of that employee.

10 The fifth defendant also relied upon the provisions of the Civil Liability Act, 2002 and asserted that:

(a) the conduct of the fifth defendant did not constitute negligence as defined in ss 5B, 5C and 5D of that Act;

(b) any risk of injury to the plaintiff from assault was an obvious risk within the meaning of s 5F of that Act and, accordingly, the plaintiff was presumed to be aware of it and there was no duty on the part of the fifth defendant to warn of that risk;

(c) the plaintiff was intoxicated within the meaning of that expression in that Act and any duty of care owed to the plaintiff was limited by s 49 of that Act and the plaintiff’s entitlement to recover was limited by s 50 of that Act;

(d) the plaintiff’s capacity to exercise reasonable care and skill was impaired by his intoxication which would not have occurred if he had not been intoxicated so the plaintiff was not entitled to recover damages or, alternatively, was required to have his damages reduced by at least twenty-five percent by reason of the provisions of s 50(4) of that Act.

11 The first, second and fifth defendants alleged the plaintiff was guilty of contributory negligence. The fifth defendant (but not the first or second defendants) alleged that the plaintiff, by reason of his conduct in the premises of the first defendant, voluntarily accepted the risk of injury from becoming intoxicated and acting in a provocative and aggressive manner toward other patrons in the hotel.

12 The first and second defendants claimed indemnity or contribution from the fifth defendant pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act, 1946. They also claimed damages for breach of contract. The latter claim was not pressed. The fifth defendant denied any liability to indemnify or contribute to any verdict recovered by the plaintiff against the first and second defendants.

13 The fifth defendant claimed indemnity or contribution from the first and second defendants pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act, 1946. The first and second defendants denied liability to indemnify or contribute to any verdict recovered by the plaintiff against the fifth defendant.

14 The damages recoverable by the plaintiff in the event he was wholly successful in his claim were agreed by the parties.

The scene

15 The following evidence, which I accept, was either agreed or not the subject of serious dispute.

(a) The hotel building is bordered on the east by Kosciusko Road, on the south by Thredbo Terrace, on the west by an unnamed lane and on the north by a group of shops comprising a strip mall. The unnamed lane intersects with Thredbo Terrace shortly before the intersection of Kosciusko Road and Thredbo Terrace. There is an entry road to a parking area adjoining the lane. The main entrance is by steps leading from the footpath in Kosciusko Road to the front doors of the hotel. The Jindabyne Police Station is located in Thredbo Terrace, a short distance from the hotel.

(b) Within the hotel, there were, at the relevant time, three bars: the cocktail bar, the back bar and the front bar. There was also a restaurant and a bistro.

(c) In 1998 the usual practice was that the restaurant would close first, the cocktail bar would close soon after that and the bistro around 10.00 or 11.00 pm. Patrons remaining in the cocktail bar would be moved into either the back bar or the front bar. At some time during the night, depending upon the number of patrons present on the premises, the back bar would also close. Any remaining patrons in the back bar would be moved into the front bar. As the bars and other facilities were closed, the staff necessary to operate the bars would reduce and their shift would end.

(d) The dimensions of the front bar were 12 metres by 8 metres. At the relevant time as you entered this bar from the road, there was a bar along the right hand wall. On the opposite wall, there was a poker machine to the left of the door, in the opposing corner there was a video game called ‘House of the Dead’. In front of the video machine there was a pool table and beside it there was a normal table, which stood about 4½ feet off the ground. There was a second pool table, closer to the front door.

(e) It was possible to see into and out of the front bar through the front window of the hotel. At the time of the altercation, only the front bar was still open.

The evidence

16 The evidence in the plaintiff’s case was, in summary, as follows:

The plaintiff

17 The plaintiff gave evidence that:

(a) He was born on 17 August 1974. He had been best friends with Craig Hansen from the age of 13. In April 1998 he obtained work at Perisher in the New South Wales Southern Alps. Mr Hansen obtained work at the Lake Crackenback Resort at about that time.

(b) He had no memory of events at the Aspen Hotel on the night of 31 July, 1 August 1998. His last memory was of snowboarding (though he did not know on which day), his next memory was of waking up weeks later in hospital. The defendants accepted the plaintiff had no memory of relevant events.

(c) He agreed he had used marijuana since aged 16 and that at some stages he used it on a daily basis. He was not using it daily when working at Perisher. He said he also used other drugs but not on a regular basis. He had used cocaine prior to the fight about four times in five years. He agreed that a small packet containing cocaine was found in his wallet after the injury and that he must have put it there. He agreed that he was involved in a serious motor accident in 2002 and that a blood test had revealed alcohol, ecstasy and marijuana in his bloodstream. He agreed cocaine was a stimulant which could make a person disinhibited and could induce a foolish decision. He denied that he became aggressive with drugs.

(d) He was asked if he had had one stubby at his home and six schooners of full strength beer at the tavern that evening whether he “would have been, to some extent, affected by that quantity of alcohol”. He replied: “Yes, if I had had that amount I would have been affected to some extent by, I guess, that quantity of alcohol.” He agreed he would have been “under the influence of that quantity of alcohol”. He agreed that alcohol could diminish inhibitions, could make one agitated, could impair judgment and lead to foolish decisions. He was aware that alcohol could make some persons aggressive. He agreed that he would take every possible means to avoid confrontation with such a person but observed that in licensed premises there should be bouncers present to prevent assault.

(e) He denied being involved in fights in clubs and pubs previously. He agreed it would be foolish to become involved in a fight as he could be seriously injured. He agreed it would be foolish if he saw a fight brewing not to take an evasive course to avoid getting involved as he could be seriously hurt. He said “If I could run away, I would, for sure”.

(f) He said that across from the door where we got let out, there's a concrete pathway that went up past the church and on to the street I lived on. That's the way we would have walked home. We wouldn't have gone left or right [when we left the hotel]. He agreed the back exit which was used was closer to his residence and was the most direct route from the hotel to his residence. He did not think that they had any option to turn right and take a longer route home. He denied he was a willing participant in the fight and said he was not an aggressor. He said that he thought that if they could have run away from the assailants, they would have done so. He was asked:

“Do you have any explanation as to why, when you left the Aspen Hotel, you didn’t run away from the assailants?”

to which he replied:

“I remember there was nothing but a dark track up to where I was living and, if we had gone up there, we most probably wouldn’t have made it back anyway. So, we most probably had no choice”.

(g) He was asked:

“But if you sensed any danger at all while you were inside the Aspen Hotel, it would have been sensible for you to call the police, wouldn’t it?”

and he answered:

“I thought that was the hotel’s department.”
The question was put again and he agreed it would have been sensible for him to call the police but then, when pressed, he said:
“I thought that the security were going to take care of us.”

Mr Hansen

18 Mr Hansen gave evidence that:

(a) He was aged 23 at the time of the incident and had been a friend of the plaintiff’s since about age 11 or 12. He said he would try to help the plaintiff if he could.

(b) He met the plaintiff around 10.00 pm on 31 July 1998 at the plaintiff’s flat. At that time there was nothing in the plaintiff’s behaviour to indicate he had had anything earlier to drink. Mr Hansen had two beers at the flat. The plaintiff, who was a slower drinker than him, had one. They then went to the Aspen Hotel where he had two beers and the plaintiff might have had one less. They then went to the Lake Jindabyne Hotel. He had two beers. The plaintiff had a drink but he didn’t know how many. They then went to the Aspen Hotel, anywhere from 1.00-2.00 am, to have a game of pool. There he had one and a half beers and the plaintiff had one. In a written statement to the police (Exhibit F), Mr Hansen said the plaintiff had a stubby of beer at the plaintiff’s flat and that he had had about eight schooners of Tooheys Real beer whilst the plaintiff had possibly up to six beers of the same type. Mr Hansen, by his assessment, was medium to well affected by the alcohol he had consumed. The plaintiff, following the altercation, seemed “a bit shaken” but did not appear affected by alcohol at all.

(c) Mr Hansen did not use drugs. He rang the Cooma Hospital about the plaintiff on the day of injury. He said he could have told them that the plaintiff “may have snorted cocaine prior to 10.30 pm”. He did not know if the plaintiff had taken cocaine earlier in the day.

(d) He and the plaintiff were playing pool with two women at the hotel. He saw the plaintiff at the other end of the pool table having a heated discussion “like an argument” with the third defendant. He could not hear what was being said. The third defendant who was about six feet tall and of medium to solid build walked away. The plaintiff was of slight build and well under six feet in height. He then observed the plaintiff in further discussion with the third and fourth defendants. After a short time he looked back and saw the plaintiff had been struck by a punch from one of the men, he did not know which. He walked over to break it up and became involved in the scuffle and got punched to the face. A bouncer came in and broke up the altercation. The matter was all over in a few seconds. Including the plaintiff and Mr Hansen, there were maybe six people involved in the altercation. He did not see the plaintiff behaving aggressively or throwing any punches. One of the bouncers said to him and the plaintiff after the altercation that they could finish their beers and their game of pool and (“from memory”) they were to leave by the back door. He thought that last drinks were called a matter of moments after the altercation. Whilst he and the plaintiff remained in the hotel, the balance of the patrons were leaving. He agreed he saw out the front of the hotel a group of people consistent with a congregation of the patrons who were leaving, saying their goodbyes.

(e) The plaintiff had an old cut on the chin that had been reopened during the altercation. Mr Hansen went to the toilet to get some wet tissues to clean up the cut. When he came back from the toilet he looked out the window and saw a group of people (there may have been up to six in the group) whom he believed to have been in the altercation standing out the front of the hotel. He and the plaintiff resumed the game of pool and finished their beers. From time to time he looked out the window. He did not believe there was any occasion when the group of people was not standing there. At the time he thought he may have seen a bouncer out there talking to the group. During that time he had no concerns for his safety. At the time he left the Aspen Hotel he was not expecting further trouble. He had no thought that he might be confronted by the group of men. If he or the plaintiff had not thought it safe, he agreed he or the plaintiff could have called a cab or the police. During the evening no-one said call the police.

19 Mr Hansen gave the following evidence as to exiting the hotel:

(a) “Q. All right. After the ten minutes or so, what happened then?

A. The bouncer had showed us out the back door - towards the back door.

Q. Just before that, did he say anything to you before he showed you out?
A. He pretty much just walked us to the back door and opened it up and he said it was right to go and ‘I'll see youse later’.

Q. Do you recall anything being said to you about closing time?
A. No.

Q. At the time you left to go to the back door, did you see where the people who were out the front were still there?
A. No. I didn't really look at that exact time, as we were leaving.

Q. All right. When you got to the back door, you said that the security fellow said words to the effect ‘It's right to go. See youse later.’ Where did he say that from?

A. From standing at the back door, as he opened it.

Q. Did he step outside?
A. No.

Q. Did he appear to you to look outside?
A. Just looked out. He did look outside when he opened the door, but he didn't go outside.

Q. You're quite sure about that?
A. Yes. “


(b) He could not see any handle on the door through which he exited which would permit him to re-open it from the outside.

(c) “Q. When the member of the security staff took you out the exit door, who was then still in the hotel?

A. Maybe the bar staff were still there.

Q. Were there a number of them?
A. I can't be exactly sure how many there were.

Q. Do you remember what they were doing?
A. No, not exactly.”

(d) “Q. You went to the back door of the hotel before you left in the company of a security guard and that door was opened by the guard, was it, before you went out?

A. He had opened the door for us.

Q. Might it be the case that he checked in the laneway by walking up and down before you left the hotel?
A. No.

Q. Bearing in mind this is 10 years ago, do you have any clear recollection one way or the other?
A. Yes, I do.

Q. You, however, did look up the laneway before you set off, did you not?
A. I think we just walked out the back door.

Q. It is the case, isn't it, in relation to what you have said already, that at that point in time no-one was visible at the end of the laneway?
A. Yes.

Q. It was only when you set off and walked some distance up the laneway that people came into view?
A. Yes.”


(e) They exited through the back door and proceeded to walk up the back ramp from the hotel [the ramp is otherwise referred to as the lane or laneway] intending to go directly to the plaintiff’s residence. They turned left onto the ramp and intended to turn right at Thredbo Terrace. They were walking.

(f) As he went up the ramp he noticed a group of people, the first of whom was “directly crossing our path”. The group was walking along the street at right angles to the direction taken by the plaintiff and Mr Hansen. When he first saw them, he and the plaintiff had got maybe half way or three-quarters of the way up the ramp. There were probably about six people belonging to the group. They were confronted by the third defendant and another man. One of them said “Look who we’ve found here”. “They were saying things like, ‘Come on, let's fight, let's finish it’”. The plaintiff and Mr Hansen were saying, “Oh, we'll just get out of here, let's go". The plaintiff said “Let’s get out of here”. He said nothing to indicate that he wanted to have a fight, he did not do anything that was aggressive, and both he and the plaintiff edged away from the group. The plaintiff was punched in the face by the third defendant and knocked to the ground. “I was…punched by the other fellow…and then we started to fight”. He did not see the plaintiff throw a punch at any stage. He was being kicked in the head after he went down. There were maybe four people assaulting them. The time between leaving the back door and the assault occurring was maybe one to two minutes during which he and the plaintiff had moved “maybe a little over 50 metres”. They were in the laneway between 12 and 25 metres from the men when he first saw them. They didn’t come down the laneway. The plaintiff and Mr Hansen walked the 12 to 25 metres to them.

(h) He was not too familiar with Jindabyne. He did not know of any alternate route to that which he and the plaintiff followed from the back door of the hotel. He did not know of anywhere to run. There was no way out before you got up the ramp. The laneway runs to the right. He did not know that on the night though. He would have noticed it if he had looked. He could not turn around to go the other way because he did not know there was one. He did not know he could run into the carpark or get out. As he approached the men, he knew the scuffle was likely to be renewed if they got within arm’s length. He and the plaintiff were not willing participants in the fight.

Sergeant Waldau

20 Sergeant Waldau gave evidence that:

(a) He was stationed at Jindabyne Police Station on 1 August 1998. The police station was located in Thredbo Terrace, about one minute’s walk from the Aspen Hotel. It had a bright blue and white illuminated sign at the front.

(b) At about 4.10 am on 1 August 1998 he heard pretty loud yelling from the front of the police station. He went outside and saw five to seven males kicking into a person on the ground about 20 metres away. At the time two other police officers were on duty whilst a third officer was on the premises though not on duty. He alerted these officers and then proceeded to the scene. He ordered the people involved to stay where they were but they moved off. He took hold of Mr Hansen who struggled and ran off. He was pursued and caught by Sgt Waldau.

(c) If a person was confronted by thugs at the intersection of the lane and Thredbo Terrace, there could be several lines of escape open. They could turn and run back down the lane, they could run through the shopping arcade, they could run into the carpark or they could run to the police station.

(d) The police did not receive a phone call from the Aspen Hotel after midnight on the morning in question. If they had, they would have responded to whatever the call may have required them to attend for. If he had been told there was a group causing trouble outside the Aspen Hotel and been asked to disperse the group, he would have attended and dispersed the group.

Constable D’Bras

21 A statement from Constable D’Bras was tendered by the plaintiff. The statement added little to the existing evidence.

Mr Gallagher

22 Mr Gallagher gave evidence:

(a) He had been at the hotel from about 8.00 or 9.00 pm on 31 July 1998 until closing time. He was 16 years of age at the time. He had had problems with his accommodation at the time and a person named Chris was at the hotel and allowed him to stay at his place. He approached the police about three weeks after the event and offered to give a statement, which he did, after being told by a barman at the hotel, Saul, whom he knew, that the plaintiff had been seriously injured.

(b) He did not know the plaintiff or Mr Hansen but had a game of pool with them. Subsequently, he observed the plaintiff and Mr Hansen playing pool with two women. They were debating a rule when the third defendant walked up to the plaintiff and Mr Hansen and said they just lost the game. There was more discussion which he did not hear. The third defendant then walked off. A few minutes later the third defendant returned and had a further heated discussion with the plaintiff. The third defendant was joined by two other men. Mr Gallagher heard the third defendant saying “Do you guys want to make something of it?” The plaintiff said “It’s only a game of pool”. Mr Gallagher went to get his jacket, then saw the two men with the third defendant push the plaintiff and start throwing punches at him. He did not see the third defendant do anything and did not see the plaintiff throwing any punches. Mr Hansen came over to help the plaintiff. There were about eight people involved in the altercation. The bouncers broke up the fight. Six to eight security persons were involved in breaking it up. All security personnel were dressed in black pants and black shirts, as was the bar staff. There was nothing to distinguish them. The third defendant was quite affected by alcohol, the plaintiff and Mr Hansen were affected by alcohol but not hugely. The security persons ejected everyone involved in the altercation except the plaintiff and Mr Hansen. They were told they would have to leave as well once they had finished their drinks or the next game of pool.

(c) The plaintiff and Mr Hansen resumed their game of pool. Mr Gallagher observed the group of men, including the three involved in the altercation sitting and standing outside through the front window. He observed the third defendant pointing back inside towards the plaintiff and Mr Hansen at one point and “every 15 or 20 seconds he would look inside” to where the plaintiff and Mr Hansen were standing. There were about ten people in the group. There was never a time until the plaintiff and Mr Hansen were taken out the back that the group was not standing outside the front door.

(d) One of the security guards spoke to the plaintiff and Mr Hansen, then led them towards the back exit. The group out the front at that time did not do anything for about 10 or 15 seconds. Then the third defendant looked inside to where the plaintiff and Mr Hansen had been and “he pointed inside and said something to the group and they all stood up and ran off to my right”. It was about 30-40 metres from there to the back door. As soon as he saw the group run off, he went after the plaintiff, Mr Hansen and the security man as “I was quite worried about what was going to happen”, that they were going to continue the fight. “I couldn’t find them…I waited a little while near the door through which I thought they had been taken out” and then he saw the guard who turned up and said he had taken them out the cocktail bar door (which was at the front). That door cannot be opened from the outside without a key. He went back and spoke to the barman, Saul. He said:

“I can't remember the exact words but I said something to the effect that I was quite worried about [the plaintiff] and Mr Hansen, as they had just been let out the back way of the pub and that I had seen a group of men out the front and noticed that they were gone, and they'd run around the back.”


(e) There were 15 to 20 people still in the bar area. It was 20 minutes to half an hour before last drinks were called from the time the plaintiff and Mr Hansen left. He left half an hour after the plaintiff and Mr Hansen left.

(f) He agreed he had lied to the police in the statement where he had said he was 18 rather than 16. He could not remember Chris’ surname, could not remember where Chris lived or how he got to Chris’ residence. He did not know Saul’s surname and he did not mention Saul to the police, nor in his statement to the police did he mention speaking to anyone about any concerns he had. In his written statement he said the plaintiff and Mr Hansen had asked to be let out the back way by the bar staff. He could not remember but must have heard it. He never saw the plaintiff throw a punch, do any shoving or do anything aggressive or provocative.

Jason Robinson and Rick Jamison

23 The plaintiff tendered a statement dated 1 August 1998 and part of the transcript of evidence given by Jason Robinson in the criminal proceedings. A further part of the transcript was tendered by the fifth defendant. Mr Robinson stated he had been walking home along Kosciusko Road with Rick Jamison when he observed six males on the corner of Thredbo Terrace and Kosciusko Road. These males turned right into Thredbo Terrace. He was then about 30-40 metres away. When he got to Thredbo Terrace he heard a noise and saw the plaintiff on the ground being kicked in the head and body. He and his companion intervened prior to the arrival of the police. He gave evidence in the criminal proceedings that the people he saw were walking. He said:

“As we came, I saw the two groups of guys walk away from the Aspen. They turned right to Thredbo Terrace so by the time I got up to the intersection they were 50 yards up the road and a scuffle already had taken place or was taking place.”

In the course of cross examination he said that the men were fighting when he first saw them, however it is clear that he there was referring to when he first saw them after they had proceeded along Thredbo Terrace. This was clarified in re-examination, and he gave the following evidence:

“Q. You saw two groups of persons, is that right?
A. I did.
Q. Is that the first time you saw people associated with what happened on Thredbo Terrace?
A. Yep.
Q. When you first saw them, what position were they in relation to the Aspen Hotel?
A. They were at the front of the Aspen Hotel.
Q. Did you see these two groups, the configuration as I understand what you told Mr Woodrow was that there was two persons and then 10 metres behind there were four persons?
A. Yep.
Q. Did you notice how they moved from the position out the front of the Aspen Hotel to the position on Thredbo Terrace?
A. They were walking.
Q. Are you able to describe how they were walking?
A. Just walking. I was not really paying that much attention at that stage. Just people walking in front of me.
Q. What distance were you away from the groups when you first saw them?
A. 30 or 40, 40 metres I guess.
Q. At some stage they went out of --?
A. Around the corner.
Q. And right up Thredbo Terrace?
A. Yes.
Q. When you got to the intersection you say that is when you heard the commotion occurring?
A. Yes.”

24 A statement of Rick Jamison dated 7 August 1998 was tendered by the plaintiff. It confirmed observing the plaintiff being attacked. It also recorded that Mr Jamison observed as he walked past the Aspen Hotel that it was closing.

Ray Ranger

25 (a) Mr Ranger was a security guard employed by the fifth defendant. He gave evidence at criminal proceedings brought against the third and fourth defendants. Mr Ranger did not give evidence at the hearing but the transcript of his evidence in the criminal proceedings was tendered in reply by the plaintiff. The transcript was of some length. It included the following evidence:

“A. The first group. What happened - when I asked them what happened, they explained what happened. I asked them - they had calmed down by this stage. There was no - there didn’t seem to be real much animosity between the two parties. I said ‘Righto, when you finish your drinks, do you mind leaving the premises’. They said ‘yes, no problems’, and they finished their drinks and dispersed.

Q. You say they dispersed, did you see where they went?
A. They went out through the front door, stood around for a few moments. There were a couple of other people out the front. There would have been approximately eight people. After that they stood around and smoked for approximately five minutes and walked off. I was waiting for them to leave. I went and done a full patrol around the hotel area of the premises, and once I thought it was okay to - for the other two people to leave that were involved in the altercation, I let them out in the back door because I couldn’t see anybody around. I thought it was all okay and that was the last I seen of the two gentlemen.”

(b) In another part of the transcript, he said that he had waited for about 15 minutes and:

“Q. During that time you had done a patrol?
A. I done a patrol around the hotel premises and around the shops to make sure there was nobody hanging around or loitering around for their own safety.
Q. Then what happened, you returned to the Aspen?
A. I returned to the Aspen hotel, spoke to the gentlemen, the two gentlemen, the two gentlemen again that were involved in the incident. I asked them to leave. When I escorted them out the back door, before I let them out the back door I done a full patrol of the carpark and around the general vicinity of the top carpark around, back around the police station. Once I done the patrol everything was fine. I let them out the back door, watched them walk up the road, they were fine, locked the back door and I went back to my normal duties.”

(c) In cross examination he had given the following evidence:

“Q. You went outside and checked outside the Aspen?
A. That is correct.
Q. How many times did you go round?
A. Walked around Peddy Plaza, round the shops at Peddy Plaza, round behind the shops, round the back of the carpark of the hotel, back in the front door. Everything was quiet. I didn’t see anybody loitering or anything like that, hanging around. I spoke to the gentlemen again. I said ‘looks pretty safe outside.’ I escorted them out the back door but before I let them out the back door I done a patrol of the premises in the carpark. There was nobody, like nobody around at all. I thought it was all right for their safety. I thought everything was all right.
Q. Couldn’t see anybody out the front?
A. No. I had already been there. I walked straight in the front of the Aspen, round the back. There was nobody when I walked in the front door, nobody around when I walked out the back door.
Q. You went inside again?
A. Yes, I went back to my duties.”

(d) He was challenged as to this evidence as follows:

“Q. You see, I suggest to you the true situation was as you explained to Mr Waldau that morning, just reading out an entry, when Ranger saw that the persons of interest were still waiting at the front of the Hotel it was decided to allow the victim to leave the rear exit?
A. Yes.
Q. The morning of the 19th you told him [Officer Waldau] when you saw the person of interest still waiting you then decided to allow these two other fellows to leave the rear exit. That is what you told Waldau, isn’t it?
A. I can’t remember.
Q. See sir, I suggest to you, you did not go out on patrol?
A. Excuse me sir -
Q. You did not go out on this patrol round the front of the Hotel as you told us?
A. I did go on patrol at the front of the Hotel.
Q. You did not go wandering round the back of the carpark area out the back as you told us before releasing these two men out the back as you told us?
A. I did.
Q. What you did do, I suggest, was cause people to leave the premises then escort the other two fellows out the back?
A. When I escorted the two gentlemen out the back door I asked them to stay inside while I went outside. I closed the door off. I done a patrol out the back and let them out once it was all clear…”

26 The evidence in the first and second defendant’s case was, in summary, as follows:

Marcus Herstik

27 Mr Herstik gave evidence:

(a) He was born in 1977. The second defendant was his father. The hotel was owned by the first defendant, a company controlled by his parents. He had worked part time for the hotel in 1995, full time during the winter seasons in 1996, 1997 and 1998. The hotel staff had a uniform comprising a dark coloured polo shirt with the Aspen emblem on it.

(b) The fifth defendant would supply the security staff and all the security procedures. Ray Ranger was the security guard supplied by the fifth defendant who was on duty at the time of the altercation. The security staff were not employed by the first defendant or the second defendant. Their wages were paid by the fifth defendant. The security guard or guards supplied by the fifth defendant were supplemented from time to time by the staff of the first defendant. If working security, staff wore security jackets with the word “Security” on them and would be told what to do by the guard provided by the fifth defendant. The fifth defendant’s employees had their own uniform. On some nights when it was quiet, the first defendant did not require an employee of the fifth defendant as Messrs Herstik and Kay would provide the security and if Mr Herstik was the duty manager he would make the decisions. Ultimately, in respect of the security personnel he said that his authority would have to prevail as “we are the ones paying the bills but we employ them to do a specific job and would bow to their experience”.

“Q. You told Mr Hewitt that in relation to decisions about who was put out and things of that sort, you as duty manager had the final say; is that correct?
A. To some degree, yeah, in consultation with the security guards. Like, if they said that someone should leave, then I'm not going to tell them - I'm not going to tell them that, no, that person's able to stay.”


(c) He was the duty manager on the morning of the injury. At the time of the altercation, all patrons were in the front bar. There were between 10 and 20 patrons there. Only two hotel employees were on duty, himself and Graham Kay, each of whom was a qualified security guard. Ray Ranger was also in attendance. The lighting was pretty bright at the time of the altercation, which was normally an indication that last drinks had either been called or were about to be called. The altercation occurred between the plaintiff and Mr Hansen and the third and fourth defendants. A few punches were thrown, a bit from both sides before staff intervened and stopped it. He saw the plaintiff and the fourth defendant exchanging punches. The plaintiff did not appear to be affected by alcohol to any great extent and he and Mr Hansen gave every sign of wanting to avoid trouble.

(d) After the altercation he thought he tidied up a bit and was closing down the bar. He did not know if he looked outside, though he had no recollection of a large group of people out the front. However, once all the lights are on the tinted windows make it a bit hard to see through the bar and it depends on where the people are standing.

(e) He had known the fourth defendant for four years prior to the incident. They used to be in ski racing together. He had known the fourth defendant’s brother for seven years. All three men were regular attendees at the hotel. He had not seen anything which suggested the fourth defendant or his brother were violent. He did not know the third defendant as well but there was not really a violent tendency through the group. So far as he was aware, they had never caused a problem at the hotel. As the persons involved in the altercation were being separated, he heard the third defendant say, “Come on outside, we’ll see who is the man.” He accepted he may have given evidence one of the group was still a little bit agitated and did not feel it was quite finished. However, as they walked out the door, he could hear the fourth defendant telling the third defendant not to be an idiot. He said that if he had seen the third or fourth defendant or the latter’s brother pointing inside the front room, he would not have been concerned. Nor was there anything that happened [prior to the fight] which warranted calling the police. The third and fourth defendants and the latter’s brother left through the front doors of the hotel. The plaintiff and Mr Hansen left through a rear door of the hotel. This accorded with standard industry practice at the time and was a procedure which was successful in preventing further breaches of the peace. The bar was being closed at the time the plaintiff and Mr Hansen left. He pointed out that a large group of persons outside the hotel was not in itself a dangerous thing as the members of the group, for example, could be waiting for a cab or to be picked up etc and it would be hard to determine whether they were “spoiling for a fight”.

(f) He acknowledged a duty of care to patrons. He agreed that if the conclusion was reached that the persons outside were spoiling for a fight, he could call the police, tell the group to go home, call a taxi, leave the plaintiff and Mr Hansen in the hotel or escort them to the police station.

(g) He had no recollection of the person called Saul being employed at the hotel. There was no-one called Saul working at the hotel at the time of the altercation.

Record book

28 A record book of the fifth defendant contained the following entries for 31 July 1998 and 1 August 1998:

Date	Name	Time On	Time Off	Hours	Signed
31.7.98	R. Ranger	22.00	04.30	6½
1.8.98	R. Ranger	22.00	04.00	6

31.7.98 At approximately 23.00 an altercation broke out between four people in the back bar. Two people wound up down the stairs between the cocktail bar. We removed the four people involved.

3.40 am Another altercation broke out in the public bar between four people over a game of pool. Graham gave me a hand to escort two of them out the front door. Whilst I tried to calm down the other two after I did calm these down. I let them out the back door after I had checked to make sure the area was all clear.
R. Ranger

1.8.98 02.45 On the corner out the front of the pub an altercation broke out between three people. I broke it up. There was no real damage to anyone. The police arrived 30 seconds after I sorted it out and told them to go home.
R. Ranger

Medical records

29 The first and second defendants tendered various medical records which contained histories describing the plaintiff as a binge drinker and user of drugs. One note stated that the plaintiff was a user of drugs, including cannabis and cocaine, on a regular basis. Another note said he did not use cocaine on a regular basis and another note said he used marijuana regularly but denied other drugs. A note of Cooma Hospital dated 1 August 1998 stated:

“Call from witness of assault Craig Hansen. Allegedly beaten by 6 men outside Jindabyne Nightclub. Witness was with Clinton from 10.30 pm. Clinton may have ‘snorted cocaine prior to 10.30 pm’. Alcohol ingestion only reported from 10.30 pm until 0230am. Some hint of marijuana smoking.”

Jones v Dunkel

30 A Jones v Dunkel inference was sought to be drawn against the first and second defendants as Mr Kay was not called. There was evidence the first defendant had sold the hotel some years ago. It may be inferred there is a high turnover of employees in the snowfields. There was no evidence Mr Kay was available to the first defendant or second defendant. The plaintiff had access to the evidence of the criminal proceedings and presumably to the statements of Mr Kay. It is not apparent if the plaintiff was aware of Mr Kay’s present whereabouts. In the circumstances, I am not prepared to draw a Jones v Dunkel inference adverse to the first and second defendants in respect of Mr Kay.

31 The evidence in the fifth defendant’s case was that of Mr Stenning.

The evidence of Mr Stenning

32 Mr Stenning gave evidence he knew the third defendant as they had attended high school together. He was at the Aspen Hotel when the altercation occurred. He heard the third defendant and a person unknown to him arguing over whose game of pool it was next. He observed a bit of pushing and shoving and saw the unknown person give the third defendant a push “and that was basically what happened first”. After the pushing took place, “there was a fight, there were punches”. He did not completely see who threw the first punch but he did remember the unidentified person being aggressive towards the third defendant. He tried to break it up. Employees of the hotel broke up the fight and Mr Stenning and others were escorted out. He waited for a moment outside, then left. He said he had initially been drinking at the Lake Jindabyne Hotel since about 5.00 pm on 31 July 1998. He was drinking full strength beer at the rate of about 2-2½ beers per hour. He then went to the Aspen Hotel where he continued drinking full strength beer, possibly at much the same rate as he had been drinking at the Lake Jindabyne Hotel. He had given a verbal statement to a solicitor a few months after the event; otherwise he had not been asked to remember what had happened until during the week before giving evidence. Cross examination of Mr Stenning revealed a very poor or non-existent recollection of surrounding events.

Assessment of the witnesses

33 I generally accept the evidence of Messrs Hansen, Robinson, Jamison Herstik, Sgt Waldau and Const D’Bras as to the events of the morning of 1 August 1998. I bear in mind when considering that evidence that memories may have dimmed to some extent by reason of the passage of time since 1998, that in the case of Mr Hansen he is a long-time friend of the plaintiff and wished to assist him and that Mr Herstik, though the son of the licensee, was accepted by plaintiff’s senior counsel as a witness of truth.

Mr Gallagher

34 The defendants mounted an overall challenge to the evidence of Mr Gallagher. They submitted that his evidence was unsatisfactory and should not be accepted unless there was independent corroboration. It was contended adverse demeanour based findings as well as other adverse findings should be made. I accept these submissions and reject Mr Gallagher’s evidence unless independently corroborated. I do so by reason of adverse demeanour findings and discrepancies between Mr Gallagher’s evidence and that of other witnesses whose evidence I accept. In particular:

(a) The cross examination of Mr Gallagher essentially commenced with a series of questions about whether he had used the name Malcolm Cox, his address and his employment. The questions were simple yet Mr Gallagher responded slowly, hesitatingly, whilst looking up and down and generally creating an adverse impression.

(b) He gave evidence he knew a bar tender at the hotel named Saul. It was this person who told him of the plaintiff’s injury which resulted in him going to the police. He said Saul had been working as barman in the front bar at the time of the altercation and Mr Gallagher had confided to him his fears about the danger to the plaintiff when he left the hotel. However, he did not know Saul’s surname. Mr Herstik had no recollection of an employee of that name and denied any person of that name was working at the hotel at the time of the altercation. Mr Gallagher did not mention Saul in his statement to the police.

(c) Mr Gallagher said that last drinks were called 20-30 minutes after the plaintiff and Mr Hansen left the hotel and he did not leave until half a hour after the plaintiff left. However, Mr Herstik said the lights were pretty bright at the time of the altercation, which indicated that last drinks had either been called or were about to be called at that time. Mr Hansen said last drinks had been called a matter of moments after the altercation and Mr Jamison observed the hotel was closing when he walked by.

(d) Mr Gallagher said there were 15-20 people in the bar area when the plaintiff and Mr Hansen left. Mr Hansen said that whilst he and the plaintiff remained at the hotel the balance of patrons was leaving and when he left maybe the bar staff were still there.

(e) Mr Gallagher said six to eight security people were involved in breaking up the altercation. Mr Herstik’s evidence was that he, Mr Kay and Mr Ranger broke up the altercation. Mr Hansen thought one bouncer broke up the altercation whilst there was another one or two nearby.

(f) Mr Gallagher gave evidence he was told the plaintiff and Mr Hansen were let out the cocktail bar door. That door is at the front of the hotel, not at the rear.

(g) Mr Gallagher said that the third defendant was looking through the window at the plaintiff and Mr Hansen every 15-20 seconds. That should mean that he had the group under continuous surveillance, which in itself is improbable, yet he told no-one at that stage of his alleged concern.

(h) He said he observed the third defendant and a group of men run from the front of the hotel 15-20 seconds after the plaintiff and Mr Hansen left the front bar. Mr Robinson’s evidence was that he observed that the men were walking and he saw them turn right into Thredbo Terrace. Mr Hansen said the men were walking when he saw them. If they had been running with the intent of fighting with the plaintiff, they would have reached the back door at about the time the plaintiff and Mr Hansen would have emerged, this did not occur.

(i) Despite his alleged concerns, he did not venture from the hotel to see if his fears were well founded.

(j) He could not remember the name of the man Chris who put him up for the night or where Chris lived or how he got to Chris’ residence.

(k) Mr Gallagher was prepared to attend licensed premises whilst under age and lie to police about his age.

Mr Ranger

35 There is a difficulty with the evidence of Mr Ranger. As previously stated, his evidence was given by the tender of a transcript of his evidence in the criminal proceedings. It was tendered by the plaintiff in reply. Senior counsel for the plaintiff contended that notwithstanding he had tendered the evidence of Mr Ranger I should regard Mr Ranger as a liar. I am unable to determine whether Mr Ranger is a liar on the evidence before me. I am unable to determine whether he was concerned for the plaintiff and Mr Hansen’s safety or whether he had any reason for concern for them. I am unable to determine if he carried out the patrols which he said he did. I am unable to determine whether he carried out no patrols and simply lied once he was aware of the events that in fact occurred. I am unable to determine, if he did carry out the patrols he said he did, whether they were done with reasonable care or not. It is possible that when he made his patrol at the front the third and fourth defendants and the latter’s brother had temporarily dispersed or hidden.

36 There was evidence from Mr Hansen that when he was leaving Mr Ranger looked out the back door and told Mr Hansen and the plaintiff it was right to go. Insofar as Mr Ranger was indicating the lane was clear, he was correct. There is no satisfactory evidence Mr Hansen or the plaintiff understood Mr Ranger’s comments were to be taken more widely or that they relied upon them.

37 The plaintiff relied upon a Jones v Dunkel submission as regards Mr Ranger as against the first, second and fifth defendants. In my opinion, that submission is not available against the first and second defendants. There was no evidence Mr Ranger was in the camp of the first and second defendants. Indeed, there were cross actions between the first and second defendants and the fifth defendant. The Jones v Dunkel submission may not be available against the fifth defendant as, by tendering the transcript, the plaintiff has placed Mr Ranger’s evidence before the Court. Even if it was open to draw an inference against the fifth defendant that had Mr Ranger been called his evidence would not have assisted the fifth defendant, such an inference does not assist me in determining what conclusions I should draw from Mr Ranger’s evidence.

Mr Stenning

38 Having regard to the amount of alcohol Mr Stenning ingested prior to the altercation, the absence of any contemporaneous record from which to refresh his recollection, his lack of recall of most details and the long passage of time since it occurred, I am unable to accept his evidence as reliable. Accordingly, I have accorded it no weight in my determination.

Some factual findings

39 I make the following factual findings:

(a) The evidence establishes that the plaintiff on occasions was a binge drinker. The evidence before me is that the plaintiff had consumed no more than six schooners and a stubby of beer over the period from about 10.00 pm to 4.00 am the following day. There was evidence from Mr Hansen that the plaintiff was not affected and from Mr Herstik that he was not much affected. There was no scientific evidence of the amount of alcohol the plaintiff had consumed or its effect. In the circumstances, I place particular weight on the observations of Mr Herstik. I conclude the plaintiff’s faculties were not affected by alcohol to any degree which was of significance.

(b) The evidence established the plaintiff had been a drug user since age 16. However, the evidence does not establish he had consumed drugs on 31 July 1998 or 1 August 1998 or if he had that he was manifesting any effect therefrom.

(c) At the time of the altercation only the front bar was open and there were only two employees working in the bar and the security guard, Mr Ranger, was on duty. This level of staffing was appropriate.

(d) The plaintiff did not start the altercation. The plaintiff was not bound to walk away from his discussion with the third defendant. He did not know he was going to be assaulted. If during the altercation he threw some punches, he would have been entitled to defend himself.

(e) The altercation was terminated within a few moments by the hotel staff and the third and fourth defendants and the latter’s brother were escorted from the hotel through the front door.

(f) Last drinks were called immediately after the altercation.

(g) The plaintiff and Mr Hansen were allowed to finish their drinks and their game of pool. They were asked to leave as it was closing time. By the time they left, few, if any, patrons remained.

(h) The plaintiff and Mr Hansen left through a back door. It is unclear if the back door was used because there had been an altercation or because the plaintiff asked to use the back door as it was closest to his accommodation. Both reasons may have applied.

(i) The method of separating combatants and taking them out separate doors complied with standard industry practice and was a successful practice.

(j) The third and fourth defendants and the latter’s brother generally remained in the street outside the hotel after the altercation. They may have temporarily dispersed. They were joined from time to time by other patrons as they left the hotel. There was no acceptable evidence that the third defendant was pointing at the plaintiff and Mr Hansen or behaving in any threatening manner whilst in the street outside the hotel. It is unclear if Mr Herstik looked through the window and saw the group as he does not recollect now if he did.

(k) At the time the plaintiff and Mr Hansen left the hotel, Mr Hansen had no concern for his safety, he was not expecting further trouble and had no thoughts that he might be confronted by the group of men. I infer the plaintiff was of like mind as there was no acceptable evidence that he did or said anything to the contrary. The plaintiff and/or Mr Hansen could have rung the police or for a cab had they wished.

(l) After a time the third and fourth defendants and the fourth defendant’s brother and a number of other men walked along Kosciusko Road and turned into Thredbo Terrace. They did not run nor did they proceed into the lane. When first observed by Mr Hansen, they were walking across the road. The third defendant, on observing the plaintiff, said “Look who we’ve found here”. Whether the meeting was coincidental or intended by the group was not clear and I do not find the plaintiff has established the meeting was intentional.

(m) Mr Herstik did not know which direction the plaintiff and Mr Hansen would go when they left the hotel. The plaintiff and Mr Hansen did not take the path up the hill which was the shortest route to his accommodation but instead continued to walk up the path to Thredbo Terrace. Why this occurred is not apparent from the evidence.

(n) Mr Hansen was 12½-25 metres from the top of the laneway when he first observed the third defendant. I infer the plaintiff first observed the third defendant about the same time. The group commenced to make comments that indicated they proposed to fight.

(o) Mr Hansen and the plaintiff continued to walk up the path towards the group. There were a number of escape routes available to the plaintiff and Mr Hansen. Mr Hansen may have been unfamiliar with them but the plaintiff had been working at Perisher since April 1998 and was living a short distance from the hotel.

(p) It is unclear, and I am unable to find on the balance of probabilities, that if the plaintiff and Mr Hansen had retreated the group would have followed and if they did whether they would have succeeded in catching them.

The liability of the first and second defendants

The duty of care

40 The first and second defendants have denied that a duty of care was owed by them to the plaintiff in respect of the injuries sustained by him. The submission was put on a number of bases which are dealt with hereunder.

A. Generally

41 In order to consider this submission, particular regard must be had to general principles and three recent decisions of the Court of Appeal, namely Spedding v Nobles [2007] NSWCA 29, Wagstaff v Haslem [2007] NSWCA 28, and Collingwood Hotel Pty Ltd v O’Reilly [2007] NSWCA 155, which, in my opinion, are binding upon me. I note the formal submission by counsel for the fifth defendant that these decisions are erroneous.

42 There are two general principles which are relevant in this context. They are:

(a) “It is, however, exceptional to find in the law a duty to control another's actions to prevent harm to strangers. The general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third.” - Smith v Leurs (1945) 70 CLR 256 at 262; and

(b) “…an obligation to exercise reasonable care must be contrasted with an obligation to prevent harm occurring to others. The former, not the latter, is the requirement of the law. In Modbury Triangle Shopping Centre Pty Ltd v Anzil , Gleeson CJ pointed to the remarks of Brennan J in Sutherland Shire Council v Heyman and observed that ‘the common law distinguishes between an act affecting another person, and an omission to prevent harm to another. If people were under a legal duty to prevent foreseeable harm to others, the burden imposed would be intolerable.’ In Heyman , Brennan J had emphasised that the common law recognises ‘a duty to take reasonable care to avoid doing what might cause injury to another, not a duty to act to prevent injury being done to another by that other, by a third person, or by circumstances for which nobody is responsible’.” - Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 81 ALJR 1773 at [51].

43 In Desmond v Cullen (2001) 34 MVR 186 the court was concerned with a patron of a hotel who was injured when struck by a car on his way home. Grove J, with whom the other members of the Court of Appeal agreed, said at [41]:

“I accept that the duty of care of an innkeeper extends to refraining from serving intoxicating liquor to the apparently inebriated and, if inebriation does occur, to take reasonable steps in the circumstances in respect to the safety of the inebriate.”

44 However in South Tweed Heads Rugby League Football Club Ltd v Cole (2002) 55 NSWLR 113 this exception to the general principle was rejected as mere dicta. Ipp AJA, as he then was, (and with whom Heydon and Santow JJA agreed) stated at [175]:

“In my opinion, save perhaps in extraordinary cases, the law should not recognise a duty of care to protect persons from harm caused by them becoming intoxicated by alcohol following a deliberate and voluntary decision on their part to drink to excess.”

45 The conclusion of the Court of Appeal in South Tweed was upheld on appeal to the High Court [2004] HCA 29 though on various grounds. Callinan J commented at [121]:

“The voluntary act of drinking until intoxicated should be regarded as a deliberate act taken by a person exercising autonomy for which that person should carry personal responsibility in law.”

46 A further exception was recognised in a number of cases in which it was held:

“…that someone in the position of a hotel manager or licensee may be liable for injury to a patron caused by the deliberate and unlawful act of another patron.” - Collingwood at [21]

47 The basis for this duty initially was said to rest upon the general duty of care on the part of an occupier to take reasonable care to avoid a foreseeable risk of injury to an entrant: see South Tweed at [151]-[153].

48 In later cases the duty was said to:

“…depend upon the capacity, and indeed the statutory obligation, of the hotel manager or licensee to control conduct on licensed premises, pursuant to ss 103 and 125 of the Liquor Act 1982 (NSW). These provisions not only permit the licensee to ‘turn out, or cause to be turned out’ any person who is intoxicated, and to use reasonable force to that end, but also impose an obligation on a licensee not to permit intoxication on licensed premises” - Collingwood at [21]

49 The terms of the relevant provisions of the Liquor Act are concerned only with the control of conduct on the licensed premises. Similarly, the duty as occupier arises by virtue of the control of the relevant premises and in respect of events occurring thereon.

50 This was confirmed in Spedding at [50]:

“…it is clear from the authorities which have upheld the existence of a duty of care owed by a licensee to patrons that that conclusion depends not on the existence of a ‘special relationship’ recognised by law, but on the element of control.”

51 Mason P in Oxlade v Gosbridge Pty Ltd (Court of Appeal, 18 December 1998, unreported) said:

“Whatever the outer limits of such duty it encompasses the protection of a patron while he or she is on or departing from the licensed premises.”

That was a case where the injury was sustained in the carpark of a hotel and was thus within the area under the control of the hotelier.

52 In Desmond v Cullen Grove J (with whom the other members of the court agreed) said at [41]:

“The fact that an occurrence takes place beyond the physical limits of the hotel and its curtilages does not necessarily take it outside of the range of duty nor does it inevitably demonstrate discharge of duty. It is not practicable to mark the limits of potential liability nor is it required for present purposes as, for reasons to which I now turn, the appellant's claim against the respondent must fail.”

53 No other case of liability arising from injury occurring outside a hotel and its curtilage has been brought to my attention. The relevant comment in Desmond v Cullen is dicta and not binding.

54 In Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 the High Court was concerned with:

“…the principle upon which an occupier of land may be liable, in an action for negligence, to a person who, whilst on the land, is injured as a result of the deliberate wrongdoing of a third party.” - at [2]

The court held:

“[36] The appellant is entitled to succeed upon the ground that its duty as an occupier of land did not extend to taking reasonable care to prevent physical injury to the first respondent resulting from the criminal behaviour of third parties on that land.”

In the course of his judgment Gleeson CJ, with whom Gaudron and Hayne JJ agreed, held:

“[15] The first respondent suffered personal injury, the direct and immediate cause of which was the deliberate wrongdoing of the three men who attacked him. If the attack had occurred in a nearby street, or anywhere other than on land occupied by the appellant, there would have been no possible basis for attributing liability to the appellant. It is the appellant's occupation of the land on which the attack occurred that is the basis for a claim…”

55 In my opinion, the duty of care owed by the first and second defendants relevantly extended only to preventing injury to the plaintiff on the premises under their control. It did not encompass a duty of care where injury to the plaintiff was occasioned by the deliberate wrongdoing of persons over whom the defendants had no control in a public street.

B. Knowledge of manager and licensee

56 In Collingwood it was held at [21]:

“…the relevant duty to exercise reasonable care for the safety of patrons, depends upon proof that the hotel manager or licensee knew or ought to have known facts requiring intervention to protect patrons and, in those circumstances, failed to take reasonable steps to safeguard the plaintiff from a foreseeable risk of harm”

57 Even with the benefit of hindsight, it is was not clear on the evidence before me whether the meeting of the group with the plaintiff and Mr Hansen on Thredbo Terrace was the result of a deliberate intention to resume hostilities or simply chance. The coincidence in time suggests a deliberate intent, the fact the group was walking and did not venture down the lane suggests chance. The opening words “Look who we’ve found here” are consistent with both a chance meeting and feigned surprise.

58 However it is necessary to determine whether Mr Herstik knew or ought to have known facts requiring intervention to protect patrons. There is evidence at [27](e) of this judgment in relation to this aspect of the matter. I accept that evidence.

59 Mr Herstik could not recall looking out the window. Had he done so, the only acceptable evidence was that he may have seen the men and other persons standing outside the hotel but not doing anything which would have caused alarm.

60 He knew that the plaintiff and Mr Hansen were to leave by the back door in accordance with industry standard practice. He knew that the plaintiff and Mr Hansen could go in either direction in the lane or up the path. He knew the men who had been put out the front door had a number of options as to the route they would follow.

61 In my opinion, it has not been established that Mr Herstik knew or ought to have known facts requiring intervention to protect patrons.

62 I am fortified in that conclusion by the fact that Mr Hansen had no concerns for his safety and was not expecting further trouble when he left the hotel. At that time he had no thoughts of being confronted by the group of men.

63 Similarly there was no acceptable evidence the plaintiff expressed or exhibited any concerns in this regard yet he was in a better position than anyone, by reason of his involvement in the argument and altercation, to observe and determine whether the group was a danger.

64 Accordingly, I conclude that even if, contrary to the opinion expressed above, there was a general duty of care, that duty did not apply having regard to these circumstances. Alternatively, if this aspect is to be considered from the perspective of breach, that in the circumstances there was no breach by reason of the defendants not taking any additional steps to protect the plaintiff.

C. Willing participant in fight

65 The defendants submitted the plaintiff was a willing participant in the fight as a result of which no duty of care was owed to him. If the plaintiff willingly participated in the fight that would, in my opinion, amount to a deliberate act taken by a person exercising autonomy for which that person should carry personal responsibility in law - South Tweed per Callinan J at [121] and no duty of care would be owed.

66 The fact that the plaintiff and Mr Hansen, instead of retreating, continued along the lane when they knew the group was ahead and indicating a desire to fight is difficult to understand. I find it was not a consequence of a desire to engage in a fight. I so find because the plaintiff and Mr Hansen, according to the evidence, had not earlier showed a desire to get involved in an altercation and it would be improbable that they would deliberately involve themselves in a fight when they were outnumbered six persons to two.

Vicarious liability

67 It was submitted the first and second defendants were vicariously liable for any negligence of Mr Ranger. However Mr Ranger was a employee of the fifth defendant by whom his salary was paid and whose uniform he wore. Prima facie, the first and second defendants were not vicariously liable for any negligence of Mr Ranger’s - Sweeney v Boylan Nominees Pty Ltd (2006) 80 ALJR 900 particularly at [13], [32] and [33].

68 The fifth defendant submitted Mr Ranger had become the employee pro hac vice of the first and/or second defendants. The only evidence as to the contractual arrangements between the first and/or second defendants and the fifth defendant and work arrangements was given by Mr Herstik (see [27](b) above), which evidence I accept. That evidence does not establish that Mr Ranger was an employee pro hac vice of the first and/or second defendants at the relevant time as it fails to demonstrate the necessary assumption of a right of control over the manner in which the individual does his work.

69 I find the first and second defendants were not vicariously liable for any negligence by Mr Ranger.

Breach of duty

70 If, contrary to my opinion, Mr Herstik should have been aware of a risk the group may have sought to continue the fight and should have taken steps to obviate or reduce that risk, it becomes necessary to consider the question of breach of duty.

71 It was suggested the defendants could have called a cab, called the police to take the plaintiff and Mr Hansen to their accommodation, sought to disperse the group, escorted the plaintiff and Mr Hansen clear of the premises or to the police station, or kept the plaintiff and Mr Hansen on the premises.

72 As observed in Neindorf v Junkovic (2005) 80 ALJR 341 at [93]:

“This inquiry about what would have been reasonable and practicable is not to be undertaken in hindsight.”

73 There is no evidence that the plaintiff and Mr Hansen would have assessed the risk (without the benefit of hindsight) as such that they would have agreed that a cab should be called, the police should be contacted or they should remain longer at the premises. The opposite is likely as the evidence was that the plaintiff had earlier expressed a desire to go home, the plaintiff and Mr Hansen could have contacted a cab or the police had they wished to yet they had not done so. It was not established a cab would come at that time of night for a small fare for a distance of less than a kilometre or that the police would convey the plaintiff and Mr Hansen to their accommodation.

74 There is no evidence the group would have dispersed if requested to do so by the defendants and the defendants’ manpower was not such that more than one employee (if that) was available to escort the plaintiff and Mr Hansen clear of the premises or to the police station. There was no evidence that a single escort would have deterred the group from attacking if that was their intent. The group’s behaviour after the police arrival at the fight suggests the contrary. The risk presumably would be slight and the need for the work at the hotel to be interrupted to provide an escort is a relevant consideration.

75 I am not satisfied that the steps which the plaintiff asserts should have been taken were either practicable or reasonable or would have been taken following consultation with the plaintiff and Mr Hansen or would have avoided injury.

76 In my opinion, the plaintiff has failed to establish liability on the part of the first and second defendants. There will be a verdict and judgment for the first and second defendants.

The fifth defendant’s liability

77 The plaintiff alleged the fifth defendant was vicariously liable for the negligence of Mr Ranger. No other allegation of negligence was made against the fifth defendant.

78 The fifth defendant was contracted to provide services which included giving effect to the obligations of the first and second defendants.

79 I have concluded the first and second defendants owed no relevant duty to the plaintiff. In these circumstances, I see no basis upon which to impose a duty upon the fifth defendant.

80 Even if the fifth defendant owed a duty of care to the plaintiff, the plaintiff has not, in my opinion, established breach on the part of the fifth defendant (see paras [35]-[37] hereof). In my opinion, the plaintiff has not established liability on the part of the fifth defendant.

81 There will be a verdict and judgment for the fifth defendant.

Conclusion

82 Having regard to the foregoing conclusions, it is unnecessary to further consider causation, the application of the Civil Liability Act, 2002, or the issues of volenti, contributory negligence or apportionment.

Orders

83 I make the following orders:

1. Verdict and judgment for the first, second and fifth defendants.

2. Plaintiff to pay the costs of the first, second and fifth defendants.

3. Verdict and judgment for the cross defendant, with costs, on the amended first cross claim.

4. Verdict and judgment for the cross defendants, with costs, on the amended second cross claim.

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