Roney v Priestman (No 2)
[2005] TASSC 132
•21 December 2005
[2005] TASSC 132
CITATION: Roney v Priestman (No 2) [2005] TASSC 132
PARTIES: RONEY, Leanne Patricia
v
PRIESTMAN, Reginald
BEAUREGARD, Maurice
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 92/2004
DELIVERED ON: 21 December 2005
DELIVERED AT: Hobart
HEARING DATE: 10 March, 9 June, 23 August and 9 November 2005
JUDGMENT OF: Crawford, Slicer and Evans JJ
CATCHWORDS:
Torts – Negligence – Essentials of action for negligence – Damage – Causation – Other cases – Temporary absence of security staff of nightclub – Whether a cause of injuries from assault by a patron.
Aust Dig Torts [62]
REPRESENTATION:
Counsel:
Appellant:C N Dockray (10 March 2005); S Taglieri (9 June 2005); S P Estcourt QC (23 August 2005); A J Hall (9 November 2005)
Respondents: K E Read and J Shepherd (10 March 2005 and 23 August 2005); K E Read (9 June 2005 and 9 November 2005)
Solicitors:
Appellant: C N Dockray
Respondents: Page Seager
Judgment Number: [2005] TASSC 132
Number of paragraphs: 21
Serial No 132/2005
File No FCA 92/2004
LEANNE PATRICIA RONEY v REGINALD PRIESTMAN and
MICHEL BEAUREGARD
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
SLICER J
EVANS J
21 December 2005
Orders of the Court
Appeal dismissed.
Cross-appeal relating to liability, allowed.
Judgment for plaintiff against defendants for $38,406, set aside.
Judgment for plaintiff against defendants for $1,000.
Serial No 132/2005
File No FCA 92/2004
LEANNE PATRICIA RONEY v REGINALD PRIESTMAN and
MICHEL BEAUREGARD
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
21 December 2005
On 1 December 1996, the appellant was a patron at a nightclub operated by the respondents. The trial judge found that she was involved in three incidents with persons called Adrian and Nicole and that during the second and third incidents, Adrian and Nicole assaulted her in relatively minor ways. The trial judge also found that following the third incident, the appellant was assaulted in a far more violent fashion by Grant Jackson. She sued the respondents for damages for negligence arising out of all of those assaults, claiming that the respondents failed to take reasonable care for her safety.
On 6 September 2004, the trial judge published reasons for judgment. See Roney v Priestman [2004] TASSC 96. His findings concerning the first incident included the following. The appellant was at the bar obtaining drinks when Adrian and Nicole approached. Nicole started swearing at her and threatening her. Adrian was encouraging Nicole. The appellant had a friend go upstairs to fetch a security man, John, who came down. He removed Adrian and Nicole from the premises.
The findings of the learned judge concerning the second incident were as follows. It occurred about 15 minutes later. The appellant was dancing with two friends when Adrian and Nicole approached her on the dance floor. They bumped, nudged, swore at and threatened her. Two of the security staff removed them. The appellant saw them taken as far as a door near the bar that led to the stairs. She saw them go out that door. At that stage she saw Jackson standing near the disc jockey's box and laughing. The learned judge held that the appellant was entitled to recover damages in respect of those minor assaults by Adrian and Nicole (bumping and nudging) during the second incident. His Honour gave no reason for so holding and arguably it was contrary to his Honour's statements that "I am not persuaded that the re-admission of Nicole and Adrian after the first incident involved a breach of the defendants' duty of care" and "I think the decision to re-admit Adrian and Nicole after the first incident may have involved misjudgment, but did not involve negligence". It is possible that the learned judge thought that the respondents breached their duty of care by failing in some way to prevent the assaults by Adrian and Nicole after they were re-admitted, but the reasons for judgment do not state that. However, notwithstanding those problems that arise from omissions in the reasons for judgment, the respondents did not appeal against the determination that they were liable to the appellant in respect of the assaults by Adrian and Nicole during the second incident.
The findings of the learned judge concerning the third incident were as follows. The appellant saw Adrian and Nicole come back in. Nicole approached and hit her in the side of the face, and swore at her. Adrian then grabbed her around the throat. Two security staff members, Mark and Brett, again took Adrian and Nicole away through the door that led to the stairs and the street. The learned judge held that the appellant was also entitled to recover damages in respect of those assaults by Adrian and Nicole in the course of the third incident. Explicit reasons for so holding were not given by his Honour, but it may be inferred that the reasons are the same as his Honour's reasons for holding that the respondents were liable for the later assault by Jackson. I will refer to those reasons in due course. The respondents did not appeal against the determination that they were liable to the appellant in respect of the assaults by Adrian and Nicole during the third incident.
The learned judge found that shortly after the third and final removal of Adrian and Nicole, the Jackson assault took place. His Honour accepted the evidence of the appellant about it. It included that the two security officers were still removing Adrian and Nicole when it occurred. Once again, the appellant became aware of Grant Jackson standing near the disc jockey's box and laughing. She swore at him. She thought she told him to "fuck off". He moved towards her (as a consequence, she said). She told him that she knew he and a man named Mark had trashed her car. Jackson (he was just laughing, according to her) said: "Yeah. So what? Your fucking house is next." She told him that he did not scare her and that she had two brothers who would deal with him. (She described him as more or less laughing in her face). She then made a spitting motion towards his face, but did not eject any saliva from her mouth. (She agreed that by doing so she was mocking him and that they were close to each other). He lunged at her. To protect herself, she bent down to get under a table. Jackson starting kneeing her in the face as she was bent over. He had hold of her and was thrusting her face down into his knee. He kneed her in the face three times, so far as she could recall. She had a recollection of losing consciousness. She ended up on another part of the floor, away from the table, out in the open. There, Jackson delivered a heavy blow to her face with his fist. The learned judge considered that the evidence of the appellant was substantially corroborated by the evidence of Tracy Walker. She said that she saw Jackson start hitting the appellant; that she thought his right knee came up into the appellant's face; and that the appellant then fell to the ground, crawling through tables, looked up at her, and "passed out, like semi-unconscious". The learned judge found that there were about 50 to 70 people in the club at the time.
It was found that the respondents owed a duty of care to the appellant as a patron of the club and that they breached that duty of care. Those findings are not challenged by the respondents. The learned judge held that they were liable to the appellant for damages in respect of the assault by Jackson, but the appellant should bear the greater share of the responsibility for her injuries. It was determined that for contributory negligence, it was just and equitable that her damages be reduced by 60 percent. The appellant appealed against that determination, claiming that it was against the evidence and the weight of evidence. The respondents cross-appealed against the determination that they were liable to the appellant on the ground that the learned judge failed to consider the essential question of causation, that is, whether the respondents' breach of duty caused the appellant's injuries. That aspect of the cross-appeal was argued only in relation to the Jackson assault and not the earlier assaults by Adrian and Nicole. The respondents also cross-appealed on an issue concerning the assessment of damages.
On 10 March 2005 the appeal and cross-appeal were heard and on 9 June 2005 the Court published its reasons for coming to the following conclusion (Roney v Priestman [2005] TASSC 52):
1On the appeal, by a majority, that the determination of the appeal (which concerned contributory negligence only) should await the resolution of the issue of causation.
2On the cross-appeal, by a majority, that the learned trial judge erred by failing to consider the issue of causation.
3On the cross-appeal, that the cross-appeal concerning damages failed.
On 23 August the Court heard submissions concerning disposition of the appeal and cross-appeal. It determined that following the receipt of further submissions, it would decide whether the respondents' negligent breach of duty, as found by the learned trial judge, caused the appellant's injuries suffered in the assault by Jackson. If the issue was to be decided in favour of the appellant, the Court would also determine the appeal by the appellant against the apportionment of contributory negligence. If the issue was to be decided against the appellant, in which case her claim against the respondents that arose out of the assault by Jackson would have failed, the Court would assess damages confined to damages for her injuries at the hands of Adrian and Nicole in the second and third incidents.
On 9 November, counsel for the appellant and the respondents made submissions about those matters and the Court reserved its decision.
Duty and breach
His Honour did not think that prior to the third removal of Adrian and Nicole it was reasonably foreseeable on the part of the respondents or their staff that Jackson would assault the appellant or anyone else. There was no suggestion that his conduct had been somewhat disorderly, let alone violent, nor that he had shown any likelihood of turning violent. He was, in fact, an off-duty employee of the respondents. However, his Honour thought it was reasonably foreseeable that someone, though no-one in particular, in the group that included Adrian and Nicole, might continue the harassment of the appellant after their removal from the premises, particularly if an opportunity to do so without being observed by the security staff arose as a result of all of them being temporarily absent at the same time. There was no evidence that anyone from the other group displayed any hostility towards the appellant prior to the final encounter with Jackson, nor was there any evidence that anyone from that other group displayed any hostility towards any other member of the appellant's group. Nevertheless, his Honour found that there was evidence that a risk of violence to the appellant was known to the respondents and their security staff and on the basis of it, found that the respondents and their security staff ought to have foreseen the possibility that Adrian and Nicole were not alone in their hostility towards the appellant, and that someone else from their group might harass or injure her after their removal. That was a risk that his Honour found the respondents ought to have taken reasonable steps to obviate.
Reference was also made by the learned judge to a general risk of injury to some customer during the temporary absence of security staff. That temporary absence could have been avoided by the security staff ejecting and excluding Adrian and Nicole after the second incident, the learned judge found. The evidence did not establish whether they were then ejected and re-admitted, or whether they were simply taken out of sight and spoken to before being allowed to return to the dance floor. Given that they had resumed their harassment of the appellant after the first incident, the learned judge thought it was reasonably foreseeable that they would resume it again if not excluded after the second incident, and that it would be necessary for both the security men based downstairs to absent themselves, possibly for a matter of minutes, in order to remove them if a third incident occurred. His Honour found that the respondents' duty of care to patrons generally required the couple to be excluded after the second incident, otherwise they might have taken up more and more of the security staff's time, to the risk of customers generally. The second respondent gave evidence to the effect that it was the policy of the house to exclude troublemakers only after the use of physical force.
It was found that the respondents employed the services of a sufficient number of security staff, but it was the view of the learned judge that their duty of care required them not just to employ an adequate number of security staff, but also to take reasonable steps to ensure an adequate level of supervision and control of their customers by the security staff whenever practicable. His Honour found that by failing to exclude Adrian and Nicole after the second incident, the respondents' security staff created a risk that they would need to remove them on a third occasion, leaving the customers temporarily unsupervised and unprotected. Having regard also to the known risk of violence to the appellant and the general risk of violence between customers, the learned judge found that the duty of care was breached.
Causation
Counsel for the appellant conceded that she carried the burden of establishing, on the balance of probabilities, that the assault by Jackson would not have occurred if the two members of the security staff, who were removing Adrian and Nicole for the third time, had been present. He also conceded that there was no evidence as to Jackson's state of mind concerning the absence of the security staff from the room and as to its influence on his decision to assault the appellant, nor was there evidence establishing that Jackson went over to the appellant with an assault in mind. Counsel agreed that it was possible that the Jackson assault would have taken place even if the security staff were in the room. Nevertheless, he submitted that their absence materially contributed to the appellant suffering her injuries, that their absence increased the risk of an assault occurring and that one in fact occurred.
Counsel for the respondents submitted that the test for causation to be applied by the Court was the common sense test to be found in March v E & M H Stramare Pty Ltd (1991) 171 CLR 506. He relied on a number of facts in support of his submission that the appellant had failed to prove that the respondents' breach of duty caused the appellant's injuries. Those facts included that there were 50 – 70 people in the room; that sound and sight were restricted; that the assault by Jackson only occurred "on the spur of the moment" when it was provoked by the appellant spitting at him; that it was not reasonably foreseeable that Jackson would assault the appellant; that Jackson was an off-duty employee of the respondents (supporting an inference that he was likely to know that if he assaulted a customer he would lose his employment, an event which in fact occurred); that there had been no incident between Jackson and the appellant that evening; and that the duties of security staff were numerous and varied and included supervising the activities of all of the patrons of the club. There was also evidence from the appellant, although it was not specific to the moment of the assault by Jackson, that it was a large room that could probably hold between 200 and 300 people comfortably; that in the room there was a bar in the shape of half a horse shoe, a DJ box, a dance floor and a lot of tables and chairs; that it was very dark; and that there were coloured disco lights that flashed on and off.
Having regard to the facts to which I have just referred and in particular, to the fact that it was not reasonably foreseeable that Jackson would assault the appellant and the fact that the assault only occurred on the sudden, apparently as an immediate reaction to the provocative conduct of the appellant by spitting, I conclude that the appellant failed to prove that the breach of duty caused her injuries. At the most, it can only be said as a possibility, and certainly not a probability, that if the two absent members of the security staff were in the room the assault would not have occurred either because they would have intervened or because Jackson would have been deterred by the presence of the staff. That the events happened so quickly requires a finding on causation that is adverse to the appellant. Accordingly, the judgment for the appellant against the respondents for $38,406 should be set aside. On that basis, it becomes unnecessary to determine the appeal against the apportionment for contributory negligence.
Damages
There remains the determination of the learned judge that the respondents are liable to the appellant for damages as a consequence of the assaults by Adrian and Nicole in the second and third incidents. It was agreed by the parties that in the event of the Court finding against the appellant in relation to the Jackson assault, it should assess damages in relation to the earlier assaults.
The assaults in the second incident were extremely minor, described by the appellant as "bumping and nudging" when she was on the dance floor. The assaults in the third incident were more violent. She described Nicole hitting her once in the side of the face with her fist and Adrian having a hand round her throat from the front. She said that she had a numb lip from Nicole's punch. She referred to nothing more than those matters and made no claims to have suffered a lasting injury.
The damages should contain no aggravated or exemplary aspect, as might be the case if they were being awarded against the assailants. Against the respondents I would assess them in the sum of $1,000 and I would order judgment in favour of the appellant against the respondents in that amount. It should not be reduced for contributory negligence because that was not an issue concerning the assaults by Adrian and Nicole.
Orders
There should be an order setting aside the judgment for the plaintiff against the defendants for $38,406 and an order that there be judgment for the plaintiff against the defendants for $1,000. Orders as to costs will need to be resolved.
File No FCA 92/2004
LEANNE PATRICIA RONEY v REGINALD PRIESTMAN and
MICHEL BEAUREGARD
REASONS FOR JUDGMENT FULL COURT
SLICER J
21 December 2005
I have had the benefit of reading, in draft form, the reasons for judgment of the learned President and agree with his reasoning and conclusions. I would propose that there be an order setting aside the judgment for the plaintiff against the defendants for $38,406 and order that there be judgment for the plaintiff against the defendants for $1,000.
File No FCA 92/2004
LEANNE PATRICIA RONEY v REGINALD PRIESTMAN and
MICHEL BEAUREGARD
REASONS FOR JUDGMENT FULL COURT
EVANS J
21 December 2005
I agree with the reasons for judgment of Crawford J and the orders he proposes.
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