Quintano v B W Rose Pty Ltd

[2008] NSWSC 957

CITATION:	Quintano v B W Rose Pty Ltd [2008] NSWSC 957
HEARING DATE(S):	28 July 08
JURISDICTION:	Common Law Division Professional Negligence List
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	28 July 2008
DECISION:	Report admitted, subject to rejection of various parts.
CATCHWORDS:	EVIDENCE – EXPERT EVIDENCE – admissibility of report of licensed security consultant on security regime of first defendant – whether report sufficiently discloses facts or assumptions upon which opinions are based – whether permissible for an expert to express opinions based on facts that he or she has deduced from reading a body of evidentiary material – whether deduced facts are disclosed in a way which enables the Court to ascertain whether or not they have been otherwise proven – whether opinions disclose underlying rationale demonstrating that they are founded in specialised knowledge or which permit them to be tested – whether opinions expressed are mere ipse dixit.
LEGISLATION CITED:	(NSW) Evidence Act 1995, s79
CATEGORY:	Procedural and other rulings
CASES CITED:	Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
PARTIES:	Luke Quintano (plaintiff) BW Rose Pty Ltd (first defendant) AWS Security Services Pty Ltd (second defendant)
FILE NUMBER(S):	SC 20130/04
COUNSEL:	Mr H J Marshall SC w Mr D J Hooke (plaintiff) Mr S G Campbell SC w Mr A B Parker (second defendant)
SOLICITORS:	Beilby Poulden Costello (plaintiff) Curwood & Partners (second defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

BRERETON J

Monday 28 July 2008

20130/04 Quintano v B W Rose Pty Ltd

JUDGMENT (ex tempore – Admissibility of Mr Jennings’ report)

1 HIS HONOUR: The plaintiff tenders a report of Mr Richard Jennings, a licensed security consultant, dated 5 October 2007. Mr Jennings says that he is a Licensed Security Consultant, Certified Advanced Risk Manager and Certified Workplace Assessor and Trainer, and deposes to extensive professional experience as a police officer and security consultant, including that he has for some years been retained by hotels, clubs and nightclubs to analyse risks and write standard operating procedures for security officers and management in regard to licensed premises. Also, he says, during his police career he dealt extensively with the investigation and criminology of threats and offences on licensed premises, and security and safety risks applicable to persons upon or in the vicinity of such premises.

2 It is not in doubt that Mr Jennings has relevant expertise in the security industry, and in particular in connection with security in licensed premises, and that in that particular field he has specialised knowledge based on training, study or experience such as would permit him to express an admissible expert opinion within (NSW) Evidence Act 1995, s79.

3 The objection to the admissibility of his report is founded on two major contentions: first, that he does not sufficiently disclose the facts or assumptions upon which his opinions are based, but rather embarks on a process of reasoning and deduction to express conclusions of fact; and secondly, that his opinions are mere ipse dixits which do not sufficiently disclose the rationale that underlies them so as to demonstrate that they are in fact founded in his specialised knowledge, or to permit them to be tested and judged.

4 These objections are, of course, founded in what was said by Heydon JA, as his Honour then was, in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, in particular at [85]:

In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of ‘specialised knowledge’; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be ‘wholly or substantially based on the witness's expert knowledge’; so far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v The Queen (at 428 [41]), on ‘a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise’.

5 I shall deal first with the complaint that Mr Jennings, rather than stating with clarity the facts he has assumed, embarked on a process of deduction to express conclusions of fact.

6 In the passage commencing at paragraph 19 of the report, under the heading “Assumed Facts”, and continuing through until paragraph 26, Mr Jennings sets out in narrative form the “facts” which he has apparently assumed for the purpose of his report. His narrative contains a number of footnotes, which reference various of the matters asserted in it to sources in the evidence or material that was provided to him, including statements of witnesses in the criminal proceedings that ensued from the incident, plans drawn by them, and the transcript of the committal proceedings. It is clear that what Mr Jennings has done is to review the evidentiary material available to him, form an impression of the facts, and then proceed to express an opinion based on the impression so formed. What he sets out at paragraphs 19 to 26 – with the possible exception of the last sentence of paragraph 26, to which I shall come – is the impression of the facts that he formed from reviewing the evidentiary material available to him. That impression constitutes the body of facts which he has assumed for the purposes of expressing his opinion.

7 That the facts which he so assumed are deduced by an examination of the available evidence, involving some process of inference on his part, does not mean that his report fails sufficiently to set out the facts assumed for the purpose of expressing his opinion. If, ultimately, the evidence does not make good those assumed facts, then it may be that – depending on the criticality of each such fact to the ultimate opinions – the opinions will fail, as the pillars which underpin them are removed. And, just because Mr Jennings has drawn certain inferences from the evidentiary material does not mean that the Court would draw the same inferences, and Mr Jennings' process of inference or fact finding is not of any relevance to the Court's process of fact finding.

8 However, just as it is permissible for an expert to express opinions based on facts that he or she has observed, so it is equally permissible for an expert to express opinions based on facts that he or she has deduced from reading a body of evidentiary material. So long as those facts are disclosed in a way which enables the court ultimately to ascertain whether or not they have been otherwise proven – which will often be through sources or witnesses other than the expert himself or herself – the requirements of Makita v Sprowles are not, in this respect, offended.

9 I have indicated that the last sentence in paragraph 26 is potentially an exception to this. It goes further, in that it expresses Mr Jennings’ speculation as to "a likely scenario" in which the incident occurred. While it is true that it is in that sense speculative, all it does is to indicate that that scenario is one of the factual scenarios which Mr Jennings has taken into account for the purposes of expressing his opinion. If, ultimately, I do not reach a similar conclusion (namely, that it was the probable scenario), then, insofar as Mr Jennings’ opinion is based on that scenario, it will be worthless. If, on the other hand, I were, independently on the evidence in this trial, to reach a like conclusion, then there would be a factual basis for any opinion that depended on it.

10 Accordingly, the report – in particular in paragraphs 19 to 26 – does disclose the assumed facts upon which Mr Jennings’ opinions are expressed. Those facts ultimately will fall to be proven or not by other evidence in the case.

11 The essential opinions expressed by Mr Jennings are to be found in the answers to the questions put to him in the brief to expert, as set out at paragraphs 14 to 18 inclusive of his report. They are as follows:

14. The level of security required at the premises having regard to all of the known factors, including the nature and location of the premises, the number of patrons and the known history of incidents and risks – As detailed in my report it is my belief that taking all of the known risk factors into consideration that this nightclub required up to eight qualified and trained security officers as well the supply of a working metal detector to be used at the door for searching patrons.
15. The appropriate distribution of security staff throughout the premises having regard to the locations at which their presence would be most effective and the likelihood of incidents – As detailed in my report I believe that there should have been two security officers on the door searching patrons (one male and one female), at least two watching the dance floor and its immediate environs, one watching the pool tables, one close to the bar, one officer patrolling the general drinking area of the club and one in the carpark or outside the club checking on patrons leaving. With such numbers and placements the likelihood of violent incidents would have very much reduced if not eliminated altogether.
16. The steps which were and ought to have been taken to assess security risks, the level of security required, the placement of security staff and the nature of anticipated security response – prior to the incident involving the shooting of this Plaintiff and most appropriately when the club first opened for business, a qualified and licensed security professional should be been retained to analyse the risks and conceive a security plan of operation showing what was security was needed, when and with what duties allocated and an other measures needed to achieve an acceptable level of security. Such a plan would commonly include an incident response plan of action.
17. Having regard to the matter identified in paragraph 1 above (para 14) should security screening and/or metal detectors have been used in an effort to prevent the introduction of weapons to the premises – As discussed in my report I believe security screening using hand searches and metal detectors was an essential element at this club at the time of this incident and that proper use of same would almost certainly have prevented the discreet introduction of weapons into the club.
18. Is there any basis in the evidence available which ought reasonably to have lead to the banning of individuals believed to have been involved in the fracas which lead to the Plaintiff’s injury being banned from the premises and if so, what means should have been implemented to ensure that those individuals did not enter the premises – As far as I am aware there is no evidence that the person who were involved in the pre-shooting fracas at the club had been involved in any previous incident which could have lead to them being banned. If persons had been so involved then the common practice would be to record the names of such banned individuals on a register and record why and for how long they had been banned. If the person returned to the club during the ‘banning’ period then the expectation if they would be identified from that register and refused entry.

12 In addition, the following appears under the heading "Opinion" at the conclusion of the report:

53. It is my opinion that there were a number of matters of neglect on the part of the Defendants, which allowed this attack on the Plaintiff to occur in the manner that it did and that if those factors had been dealt with in a manner which was in accordance with acknowledged and accepted practice in 2002, the attack would have been most unlikely to have occurred, and the plaintiff’s injuries thereby avoided.
54. These factors include failing to have a proper analysis of security and safety risks carried out by some competent and qualified person at the nightclub prior to this incident.
55. Failing to have a sufficient number of trained and licensed security officers on duty at the nightclub as would be commensurate to maintaining good order and safety. As stated above I believe that this nightclub with this number of patrons required up to eight security officers to properly maintain order when all risk factors were considered.
56. Failing to ensure that all patrons were properly searched by hand and with metal detectors prior to their entry on all occasions in accordance with accepted reasonable practice in the industry at that time and which action, in my opinion, was most likely to have either deterred the gunman from trying to bring the gun into the nightclub on the night, or to have discovered the gun in the searching process, properly resulting in Police being called.
57. The security provided by both AWS and the proprietor was inadequate in many respects. Initially there was an inadequate number of security officers and the two who were on duty do not appear to been adequately trained in security operations at such licensed premises and certainly not adequately supervised/managed. There does not appear to have been any security in that part of the of the premises where the altercation and subsequent shooting occurred for some minutes prior to the altercation and that altercation preceded the shooting by some appreciably significant period of time.

13 It is of those opinions that the plaintiff wishes to adduce as the expert opinion of Mr Jennings, and it is those opinions that the second defendant submits are mere "ipse dixits", not shown to be sourced in Mr Jennings’ specialised knowledge.

14 The first question and answer (paragraph 14) relate to the level of security required at the premises. The reasoning which leads Mr Jennings to his answer to that question is to be found in paragraph 32 of the report, which identifies duties commonly designated for security officers in such premises, and paragraphs 35 to 40 which, while indicating that there is no accepted standard industry ratio of guards to patrons, set out the relevant factors to be taken into account that may aggravate or mitigate the need for security and (in paragraph 39) the various functions of the several personnel that would be required to perform them in the subject premises. In addition, paragraph 38 draws attention to another consideration which informs the requisite number of security officers, and paragraph 40 also points to a suggested principle in the employment of security as to what is to happen if an officer is to be absent for a short time.

15 While it is true that Mr Jennings does not, in terms, express the view that there was any generally accepted industry standard, in my opinion, the parts of his report to which I have referred, supplemented to some extent by paragraph 48, reveal a rationale for the answer which he gives to paragraph 14, which enables his reasoning to be understood and to be tested, and which shows that his opinion is based in his knowledge of the security industry in its application to licensed premises.

16 So far as paragraph 15 is concerned, the first sentence of the answer overlaps with paragraph 14, and the rationale for it is disclosed in the same way. The second sentence is apparently a conclusion as to causation. I can find nothing in the report by way of the expression of any rationale which would show that his opinion in that respect is sourced in any specialised knowledge, as opposed to mere common sense or general knowledge and experience. If it is sourced in specialised knowledge, then that is simply not apparent from the report.

17 So far as paragraph 16 is concerned, the rationale for the conclusion that a licensed professional should have been retained to analyse risks and conceive a security plan is set out in paragraphs 29 to 34 of the report. Generally, I think that discloses a sufficient rationale, based in experience and knowledge of the security industry in this particular field, to enable the opinion to be understood and to be tested and judged. However, the second and third sentences of paragraph 31 go beyond what one would expect a security practitioner such as Mr Jennings necessarily to know from practice in the security industry. Those two sentences do have the appearance of a mere ipse dixit.

18 The opinion expressed in paragraph 17 relates to the need for security screening – including, in particular, metal detectors. The rationale for this opinion is apparently contained in paragraphs 46 and 47 of the report. So far as paragraph 46 is concerned, the three sentences preceding the penultimate sentence and commencing "Mrs Rose had said" appear to be observations of fact of an argumentative character, or a conclusion as to causation which is expressed as relating to the particular alleged assailant in this case, and cannot be founded in Mr Jennings’ specialised knowledge. The second sentence of paragraph 47 contains a bare assertion, which is not apparently founded in anything which precedes it. It just does not follow from what precedes it that all patrons of the club should have been searched on all occasions. The preceding material in paragraph 46 acceptably sets out the prevailing industry situation and practice, but insofar as, at the end of paragraph 47 and in paragraph 17, the witness goes beyond that, I do not think that the report discloses any rationale or basis in his specialised knowledge for that opinion.

19 Paragraph 18 does not appear to be adverse to the defendant's interest, and accordingly I do not trouble about it further.

20 The opinions expressed at the conclusion of the report, in paragraphs 53 to 57, contain mixed conclusions of fact and law and opinion. It is conceivable that they could be read as opinions as to departures from acceptable standards, but I do not think they cover anything which is not covered in paragraphs 14 to 18, and if they take the matter any further than those paragraphs, they do so by framing them as conclusions as to “negligence” or “failures”, which (despite the admissibility of evidence on the “ultimate issue”) involves questions of mixed fact and law and therefore ultimately do not assist.

21 The Executive Summary at paragraphs 8 to 13 is not pressed as adding anything that is not substantiated by the body of the report. In those circumstances, it is safer to rely on the body of the report.

22 I will therefore reject paragraphs 8, 9, 10, 11, 12 and 13. I will reject the last sentence of paragraph 15. I will reject paragraph 17. I will reject the second and third sentences of paragraph 31. I will reject paragraphs 44 and 45. I will reject the fourth last, third last and penultimate sentences of paragraph 46. I will reject the second sentence of paragraph 47. In paragraph 48, I will reject the words "failure to provide adequate numbers" at the end of the eighth and beginning of the ninth lines. I will reject paragraph 50. In paragraph 51, I will reject the third sentence, "Mrs Rose" down to "all in place". I admit the fourth sentence. I will reject the fifth sentence through to the end of that paragraph. In paragraph 52, I reject the words "and neglect of obligations" in the seventh line. I reject paragraphs 53, 54, 55, 56 and 57.

23 I otherwise admit the report as PX20.

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