Van Rullen v Royal Melbourne Hotel
[2024] VCC 1568
•15 October 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-21-02152
| RENE VAN RULLEN | Plaintiff |
| v | |
| THE ROYAL MELBOURNE HOTEL PTY LTD (ABN 22 117 952 011) | First Defendant |
| PETER SHEPPARD | Second Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26, 27 & 28 August 2024 | |
DATE OF JUDGMENT: | 15 October 2024 | |
CASE MAY BE CITED AS: | Van Rullen v Royal Melbourne Hotel & Anor | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1568 | |
REASONS FOR JUDGMENT
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Subject:NEGLIGENCE CAUSING INJURY
Catchwords: Assault on patron at licenced premises; whether hotel breached duty of care to prevent injury; whether duty required hotel to refuse entry; whether duty required hotel to refuse service of alcohol; signs of intoxication; duty to monitor patrons; duty to intervene prior to assault; whether earlier intervention could have prevented assault; credibility of witnesses
Legislation Cited: Wrongs Act (Vic) 1958
Cases Cited:Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; Banque Commerciale SA, En liquidation v Akhil Holdings Ltd (1990) 169 CLR 279; Cole v South Tweed Heads [2004] HCA 29; 217 CLR 469; Gould and Birbeck and Bacon v The Mount Oxide Mines Limited (In Liquidation) (1916) 22 CLR 490; Onassis v Vergottis [1986] 2 Lloyd’s Rep 403
Judgment: Judgment entered for the plaintiff against the second defendant. The plaintiff’s claim against the first defendant is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Seelig | Slater and Gordon Lawyers |
| For the First Defendant The Second Defendant appeared in person | Mr M Hooper SC with Mr A Clayton-Greene | Terril and Holmes Lawyers |
HER HONOUR:
1Mr Van Rullen sues the Royal Melbourne Hotel (“the Hotel”) and Mr Peter Sheppard over an assault that occurred at the Hotel on 30 May 2018.
2The assault is not in dispute. Mr Sheppard admits that he pushed Mr Van Rullen, causing him to fall, fracture his patella and tear a ligament. Mr Van Rullen required surgery which caused him to develop a deep vein thrombosis and pulmonary embolism. The quantum of damages has been agreed between all parties in the amount of $200,000.
3The plaintiff pleaded 37 particulars of negligence against the Hotel. However the case run by Mr Van Rullen at trial[1] was that the Hotel breached its duty of care to Mr Van Rullen by:
(a) allowing Mr Sheppard onto its premises when he was intoxicated;
(b) serving Mr Sheppard and Mr Howes alcohol when each was intoxicated; and
(c) failing to intervene so as to prevent the assault.
[1]Gould and Birbeck and Bacon v The Mount Oxide Mines Limited (In Liquidation) (1916) 22 CLR 490 at 517, per Isaacs and Rich JJ; Banque Commerciale SA, En liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 296-297, per Dawson J
4The Hotel admits it had a duty to take reasonable care to prevent injury to patrons from the violent, quarrelsome or disorderly conduct of other persons but denies it breached that duty or that the assault was reasonably foreseeable in all the circumstances.
5Mr Sheppard admitted he assaulted Mr Van Rullen and is liable for Mr Van Rullen’s injuries. He submits that the Hotel is also liable for breaching its duty to Mr Van Rullen by allowing Mr Sheppard onto the premises when he was intoxicated and continuing to serve him alcohol when he was intoxicated.
Issues
6The issues to be determined in this case are:
(a) Whether the Hotel breached its duty by failing to prevent Mr Sheppard from entering the premises;
(b) Whether the Hotel breached its duty by continuing to serve Mr Sheppard alcohol;
(c) Whether the Hotel breached its duty by failing to intervene in the minute or so prior to the assault.
Decision
7For the reasons that follow the answers to each of those questions is no. It follows that Mr Van Rullen fails in his claim against the Hotel.
8Mr Van Rullen succeeds in his claim against Mr Sheppard and quantum has been agreed.
9Therefore judgment is entered for the plaintiff against the second defendant. The plaintiff’s claim against the first defendant is dismissed.
Background
10On Wednesday, 30 May 2018, Mr Van Rullen went to lunch with colleagues after his workplace Annual General Meeting. Mr Van Rullen returned to work after lunch. At around 9.00pm he joined his colleague Mr Daniel Howes, Mr Howes’ girlfriend Maria, and two other colleagues at the Hotel.
11Mr Van Rullen had consumed alcohol at the company lunch, but says he was not intoxicated and he only had a “couple of sips” of wine at the Hotel. He said others, including Mr Howes, were obviously intoxicated when he arrived at the Hotel.
12The layout of the main part of the Hotel consists of a central bar from which patrons can be served on three sides. On the east side of the Hotel is the kitchen. There are dining tables to the east, south and west of the central bar. On the west there are also three high-top tables with bar stools, adjacent to each other and perpendicular to the central bar.
13Mr Van Rullen and his friends sat at the southern-most high-topped table (“the Van Rullen table”). Mr Sheppard and his friends, Mr Tom Christie and Ms Amanda McIlrath, sat at the centre high-topped table (“the Sheppard table”), next to the Van Rullen table.
14It is common ground that at around 10pm Mr Howes went over to the Sheppard table and began singing “You’ve Lost that Loving Feeling”. There was then some interaction between the two tables which culminated in Mr Sheppard walking over to Mr Van Rullen and pushing him, causing him to fall to the ground and suffer the injuries.
Evidence of intoxication
15Mr Van Rullen alleges that Mr Sheppard was intoxicated prior to attending the Hotel such that he should have been denied entry, and was otherwise displaying signs of intoxication such that he should have been refused service of alcohol or asked to leave the premises.
16Mr Van Rullen submits that Mr Sheppard:
(a) was increasingly loud and boisterous;
(b) was argumentative and aggressive;
(c) was behaving inappropriately with women;
(d) had consumed a large quantity of alcohol prior to arriving at the Hotel; and
(e) consumed a large quantity of alcohol at the Hotel.
17Mr Van Rullen submits that Mr Howes was also intoxicated and that, had the Hotel refused service of alcohol to Mr Howes or removed him from the premises, the circumstances leading to the assault would have been avoided and the assault would not have occurred.
Mr Sheppard’s evidence about intoxication
18Mr Sheppard said he began drinking around 12pm on 30 May 2018 at the Mitre Tavern with Mr Christie.
19Mr Sheppard said he could not be sure exactly how much he had drunk but thought he had about seven or eight pints of full-strength beer at the Mitre Tavern. He based this assessment on the length of time he was at the Mitre Tavern and his usual drinking rate rather than any actual recollection. He said he was at the Mitre Tavern all day drinking beer and was in “several shouts” with Mr Christie and others.
20He thinks he left the Mitre Tavern at around 5.00pm. Although he said he was refused service at the Mitre Tavern, in fact he had no recollection of this. This was something he was apparently told subsequently by someone else. That person did not give evidence. Mr Christie, who was the only witness apart from Mr Sheppard who was also at the Mitre Tavern, did not say that Mr Sheppard was refused service, but rather that Mr Sheppard wanted to pick up his laptop or his coat from work and so they decided to go to the Hotel which was closer to Mr Sheppard’s workplace. I am not persuaded that Mr Sheppard was refused service at the Mitre Tavern.
21Mr Sheppard does not recall drinking any water or eating anything before arriving at the Hotel.
22Mr Sheppard said he thought he arrived at the Hotel at about 5.30pm. Mr Christie was unsure. He initially said they had stayed at the Mitre Tavern until about 5.00pm, but later said they were at the Mitre Tavern until about 5.30-6.00pm. If Mr Christie is correct they would not have arrived at the Hotel until closer to 6.00pm or 6.30pm. It is likely that Mr Christie and Mr Sheppard arrived at the Hotel between 5.30pm and 6.30pm.
23Mr Sheppard said that while he and Mr Christie were at the Hotel they had some “passionate discussions” about sport and work. He said he remembered getting “quite exaggerated in the way that I was talking. Watching myself back several times, my mannerisms changed, I believe”. I take this to mean that he has watched the CCTV footage several times and is basing his evidence that he was quite exaggerated in the way he appeared on that footage.
24He described these changes as “I’m a very calm person normally; I don’t move around a lot, I sit quite still. I believe I was starting to talk with my hands … possibly waving them around a little bit and a lot more exaggerated actions than I would normally have in a conversation”.
25He said he knows he was loud during his discussion with Mr Christie because he was trying to get his point across to Mr Christie and that Mr Christie was also loud. He agreed when put to him by the plaintiff in cross-examination that he was “getting aggressive” with Mr Christie and that he was confrontational and argumentative. He also agreed with the Hotel that he had a financial interest in giving evidence about how loud and drunk he had appeared at the Hotel. He said he thought there were “times” when he was confrontational during the night, but that he was being sympathetic to Mr Christie when talking about family.
26He said he misunderstood Mr Christie to have said that Mr Christie’s father had died. He said “we worked out pretty quickly that that wasn’t the case” but that “regardless, we were both emotional” and that “looking back at that, having that reaction, that’s – I would have considered the information normally first before, yeah, affecting me like that, I think. I feel like my judgment was out.”
27He said at one point during the evening he had an argument with Ms McIlrath but he cannot remember when that was. He said she commented that she thought he had drunk enough and maybe he should stop. His recollection is that he said he was fine and not to worry about it. He said it was around this time that he began drinking spirits. He said he did not go to the pub to cause trouble, he went to continue drinking. He said he was “in a state where it probably wasn’t going to take much for me to get upset, unfortunately”. He said his emotions were heightened and he considered this was because of the alcohol.
28He disagreed that he had a “happy disposition” when he was purchasing drinks at the bar. He said he looked like he was impatient and he did not think he looked happy at all on the CCTV footage. He said he was “pacing around a little bit”. He said his mood “looked to be changing”.
29Mr Sheppard was interviewed by police in September 2018. He said he went to that interview intending to downplay his responsibility for the assault. In the footage of that police interview Mr Sheppard says that he does not remember the finer details of the night, that he had a couple of drinks at the Hotel but that he had a lot to drink before getting to the Hotel. He did not think that his push had caused Mr Van Rullen to fall to the ground, and he downplayed the severity of the push.
30Mr Sheppard accepted that his memory of the events of that night was incomplete and that he had spoken with people afterwards and viewed the video footage and that these had impacted on his memory. He said “the one thing for sure is I know I was intoxicated because I’ve been drinking all day, and I’m very regretful for what happened”.
31I note the remarks of Lord Pearce in Onassis v Vergottis[2] in relation to the credibility of witness evidence and the passage of time. The end point is not whether the witness was honest and truthful. I accept that Mr Sheppard was genuinely remorseful. He was not trying to mislead the court or to be evasive. However his evidence was not always reliable, in part because he has had many years to reflect on that night and to come up with an explanation, in his own mind, for what transpired. His actual memory of what happened is now almost impossible to access, as it has been overlaid with other pieces of information. It was unclear, and Mr Sheppard was honest in admitting this, what now constituted his actual memory.
[2] [1986] 2 Lloyd’s Rep 403
32When one finds oneself acting in a way that is out of character, it is natural to ruminate on what caused that behaviour. In assessing Mr Sheppard’s evidence I conclude that he was filling in blanks in his actual memory, with evidence about what he expected, or assumed or supposed he would have been doing and how he would have been acting. He readily agreed that he had been argumentative and confrontational, but evidence about what he had argued about or how he had been confrontational, apart from at the time of the assault, was scant.
33Mr Sheppard agreed that he had a financial incentive to say he was loud and drunk at the Hotel and it is difficult to dismiss this as a motive for his ready acceptance of those propositions put to him by the plaintiff. One can easily understand the temptation to diminish one’s own responsibility by after-the-fact rationalisation. In this case Mr Sheppard has convinced himself that:
(a) he must have been very drunk because he otherwise would not have acted that way; and
(b) he must also have been very obviously drunk; and
(c) therefore some of the blame rests with those who continued to serve him alcohol.
34However because of the very human desire to justify one’s actions and shift responsibility, combined with the distortive affects that both time and discussion about events with others can cause to memory, I do not consider his evidence that he was loud, boisterous, argumentative and confrontation is reliable. I look for corroborative evidence where available.
Mr Christie’s evidence about intoxication
35Mr Christie could not recall how many drinks he consumed over the course of the day but said it was “in the vicinity of eight to twelve drinks”. He said he remembered that it started with beers and towards the end of the night “it would be spirits like Jack Daniels and Coke or something along those lines”.
36Mr Christie said that by the time he and Mr Sheppard left the Mitre Tavern, he was “on his way to being drunk” and Mr Sheppard was “affected by alcohol”.
37He said Mr Sheppard became progressively more intoxicated toward the end of the night at the Hotel.
38Mr Christie said he went to the bar at the Hotel three times to buy drinks but otherwise did not specify how much he drank at the Hotel, other than his estimate of his overall alcohol consumption that day of somewhere between 8 and 12 drinks.
39He said at the Hotel Mr Sheppard was “probably more intoxicated” than he had known Mr Sheppard to be before and that he was “definitely drunk”. When asked what caused him to form the view that Mr Sheppard was intoxicated he said Mr Sheppard was “slightly more upset than usual after the chats we had … probably just a little bit emotional with what I was talking about … probably took it to heart a little bit more than he normally should of or would of because he was drunk. Yeah and so was I”. Mr Christie said this was in comparison to Mr Sheppard’s demeanour on previous occasions when they had caught up for a beer over lunch and had drunk between two and five beers. On those occasions he said Mr Sheppard’s demeanour was “nothing out of the usual”, and that he would not have been “as intoxicated” as he was at the Hotel.
Ms McIlrath’s evidence about intoxication
40Ms McIlrath said that when she arrived at the Hotel, Mr Sheppard and Mr Christie had had “quite a lot to drink”. She said she formed this view because of “the way they were sort of speaking and just how they were, they were sort of a bit loud.” When pressed on her observation she said “I don’t know, just, you know, had – just sort of a bit loud, a bit red in the face type thing”. She said that her friend told her she was leaving “because everybody’s drinking and everybody’s had quite a lot to drink”. She said she knew Mr Sheppard and Mr Christie had been out to lunch because they told her.
41Ms McIlrath said it was “likely” that she purchased some drinks at the Hotel, and that she “would have” been drinking wine. It was apparent from her evidence that she had no actual recollection of her alcohol consumption that night. She said when she woke up the next day she wasn’t feeling clear on the events and she “would say” she had “probably” had “maybe five or six drinks”. She said prior to attending the Hotel she had had one glass of wine with her friend at work.
42Ms McIlrath said Mr Christie was not making a lot of sense because he had had quite a lot of alcohol.
43She said she and Mr Sheppard had socialised fairly regularly when they were work colleagues and that they had usually been for drinks after work. She had observed Mr Sheppard drinking beer, but only rarely drinking bourbon and coke. She recalled she had seen him drinking bourbon and coke after a very long day at the races where “there’d been a lot of alcohol consumed”. She said “I used to work with Peter every day, so I know when he’d had a few drinks and I know when he’s really drunk and I know when he’s sober”.
44She assessed that Mr Sheppard had “definitely had a few drinks” but when pressed about her observations about being red in the face she said “well, what I meant was, they were both talking at us, you know”. She agreed that Mr Sheppard and Mr Christie were animated.
45She agreed that there was no point in the evening where she felt she needed help from bar staff in dealing with Mr Sheppard or Mr Christie.
Mr Van Rullen’s evidence about intoxication
46Mr Van Rullen said he was not intoxicated. He had consumed alcohol at lunch but had subsequently gone back to work and only had a few sips of wine at the Hotel.
47He said that Mr Howes was drunk.
48Mr Van Rullen did not give any evidence about noticing Mr Sheppard or the people at Mr Sheppard’s table until Mr Howes approached the table and began singing. He said there was no interaction between the tables. He did not give evidence that Mr Sheppard or Mr Christie were being loud or aggressive until the point where Mr Howes approached the table. He said he saw Mr Sheppard speak to Mr Howes in what he perceived to be an aggressive manner. He said he perceived Mr Sheppard to be “having a go” at Ms McIlrath just prior to the assault.
49He did not feel threatened by Mr Sheppard until just prior to the assault.
Mr Sit’s evidence
50Mr Sit, the assistant manager at the Hotel who was on duty that night, gave evidence that he and all staff at the Hotel were required to have a Responsible Service of Alcohol certificate. He said the course to obtain that certificate required staff to learn how to recognise people who are intoxicated and ways to defuse the situation and get them to leave the venue. He said there are a “couple of signs, two or three, that sort of indicate that they’re intoxicated”. If staff notice those three together, the patron might be offered water, or asked to slow down their consumption a bit. Mr Sit said “If they refuse or become quarrelsome then that’s another sign of being intoxicated and then we usually ask them to leave”.
51The signs he says he looks for are loss of coordination, slurring speech and being loud and boisterous. He said “you can’t just rely on one”, and that slurred speech, for example, could be a speech impediment. He said he did not see any signs of intoxication in Mr Sheppard after reviewing the CCTV footage.
52He said all staff at the Hotel, including bar staff, and staff clearing tables or on the floor, are “drilled” to keep their eyes open and be alert for signs of intoxication.
53He said singing was not a sign of intoxication and the Hotel frequently would have patrons singing and chanting footy songs. He said “it just depends on if they’re being obnoxiously loud” when determining whether singing might be a sign of intoxication.
54He agreed that a patron who was annoying other patrons, or becoming argumentative, or swaying and having difficulty walking straight, or using offensive language, might be displaying signs of intoxication. Mr Sit had not observed Mr Sheppard becoming loud or boisterous. He did not speak with Mr Sheppard. None of the staff on duty that night reported any concerns to Mr Sit about Mr Sheppard or Mr Christie.
55Mr Sit said if he heard a patron swearing aggressively at another patron he would intervene by coming over to the table and asking whether everything was all right. He would not yell out “hey stop” or similar words from the bar as in his experience this sort of action would tend to inflame the situation.
The CCTV footage
Consumption of alcohol
56The best evidence of Mr Sheppard’s alcohol consumption for part of the period he was at the Hotel comes from CCTV footage. There is CCTV footage from a camera above the bar facing the west side of the Hotel for the approximately two-and-a-half-hour period between 19.43.59 to 22.12.00 (West CCTV).
57The West CCTV shows the Van Rullen and Sheppard tables.
58There is also CCTV footage from a camera behind the bar facing south (South CCTV) for the period 19.39.34 to 19.42.58 and CCTV footage from a camera facing north-east toward the bar (North CCTV) for the period 19.39.59 - 19.44.00.
59I have carefully reviewed all the CCTV footage in its entirety. The South CCTV and North CCTV footage show different angles of the same event, which is Mr Sheppard buying a round of drinks consisting of two beers from different beer taps, a glass of wine and what appears to be a soft drink from the post-mix hose.
60At 19.41.05 Mr Sheppard is served by the female bar attendant. At 19.41.57 Mr Christie comes to the bar and Mr Sheppard hands him one of the beers. At 19.42.25 Ms McIlrath comes to the bar and Mr Sheppard hands her the glass of wine. She takes the soft drink from the bar. Mr Sheppard then pays for the drinks using a card. At 19.42.48 the bar attendant hands Mr Sheppard his card which he puts in his wallet. At 19.42.58 the bar attendant hands Mr Sheppard his receipt which he folds, and puts in his wallet. He returns his wallet to his jacket pocket, picks up his beer and walks out of camera frame.
61The West CCTV footage starts at 19.43.59 when Mr Sheppard, Mr Christie, Ms McIlrath and her friend are seated at the Sheppard table. Mr Sheppard and Ms McIlrath sit on the south side of the Sheppard table nearest the Van Rullen table. Mr Christie and Ms McIlrath’s friend sit on the north side of the table nearest the exit.
62Ms McIlrath’s friend leaves the Hotel at 20.16.40. Ms McIlrath accompanies her outside and then returns to the Sheppard table at 20.25.01. She resumes her seat next to Mr Sheppard.
63At 20.26.49 Mr Christie stands up from the table. Two minutes later he returns to the table with drinks. He passes one to Ms McIlrath and leaves the table again. There is a dark drink on the table. Based on the evidence of Mr Christie, Ms McIlrath and Mr Sheppard, I am satisfied that the drink is a bourbon and coke.
64At 20.30.41 Mr Sheppard can be seen drinking the beer he bought earlier. Ten minutes later, at 20.40.34, Mr Sheppard begins drinking the bourbon and coke.
65At 20.47.24 Ms McIlrath picks up her bag and extracts her wallet. She leaves the Sheppard table. At 20.50.40 Ms McIlrath returns to the Sheppard table and hands Mr Sheppard a drink that appears to be a bourbon and coke.
66At 20.53.32 Ms McIlrath leaves the Sheppard table and heads towards the exit. At 20.56.31 Ms McIlrath returns to the Sheppard table and takes a seat on the north side of the table, next to Mr Christie.
67At 21.29.15 Mr Christie gets up from the Sheppard table. At 21.32.59 Mr Christie returns to the table carrying some drinks. Mr Sheppard still has a bourbon and coke from Ms McIlrath which he finishes at 21.39.53.
68At 21.46.06 he starts drinking a drink that looks like a bourbon and coke, presumably from Mr Christie. By the time of the incident Mr Sheppard has not finished drinking this drink.
69Therefore in the period from 19.39 to 22.08 when the assault occurred, Mr Sheppard has drunk one beer and two bourbon and cokes, and partially drunk a third bourbon and coke.
Mr Sheppard’s interactions with women
70Mr Van Rullen submits Mr Sheppard engaged in unwelcome conduct towards women which is an indicator that he was intoxicated and, had Hotel staff been monitoring him appropriately, his conduct toward women would have led to Mr Sheppard being refused alcohol or removed from the premises well before the assault.
71Throughout the two and a half hours of footage shown on the West CCTV, people walked past the Van Rullen and Sheppard tables as they entered and left the Hotel, and presumably to access toilets and other sections of the Hotel.
72Over the course of that footage there are at least 25 occasions when women walked past Mr Sheppard.
73Prior to Maria’s arrival there are eight occasions when women walked past the Sheppard table. On none of those occasions can Mr Sheppard be seen responding or reacting in any way.
74When Maria first appears on the West CCTV at 20.18.55 she can be seen walking toward the Van Rullen and Sheppard tables from the north. Mr Sheppard reaches out his arm towards Maria and appears to say something to her. There is no evidence about what was said. Mr Sheppard gave no evidence about this incident and he was not asked about it in cross-examination.
75At 20.20.36 a woman walks past the Sheppard table and Mr Sheppard does not react.
76At 20.36.58 a woman walks past the Sheppard table. Mr Sheppard gives a slight turn of his head. He turns his head at 20.37.31 when a woman walks past, and at 20.38.25 when a couple walk past.
77There are then at least seven further occasions between 20.38 and 20.49 where women walk past the Sheppard table and Mr Sheppard has no reaction.
78At 20.49.43 a group of three women walk past the Sheppard table toward the door. The two women in front are each carrying three drinks. As they move past the Sheppard table Mr Sheppard moves behind them and flexes his left hand in a gesture. He briefly moves out of camera frame, and then returns to his seat at 20.50.06.
79Mr Sheppard gave no evidence about this and was not cross-examined about it.
80At 20.54.42 a woman walks past Mr Sheppard and he turns his head.
81There are three subsequent occasions when women walk past the Sheppard table and Mr Sheppard does not react.
Mr Sheppard being loud and boisterous.
82Both Mr Van Rullen and Mr Sheppard submit that Mr Sheppard was being loud and boisterous and was increasingly aggressive and argumentative over the course of the evening.
83Mr Van Rullen relies on Mr Sheppard’s answers to interrogatories. He did not give any evidence about Mr Sheppard’s conduct prior to Mr Howes going to the Sheppard table.
84Mr Sheppard said that, viewing the CCTV footage, he can see that he is gesticulating and moving around more than he normally would.
85Analysis of the West CCTV at 19.43.59 shows Mr Sheppard at the Sheppard table with Mr Christie, Ms McIlrath and Ms McIlrath’s friend. Mr Sheppard is making some hand gestures while talking.
86At 19.47.27 Mr Sheppard is engaged in what appears to be an animated discussion with Ms McIlrath. He makes hand gestures and points his finger. At this point Mr Christie and Ms McIlrath’s friend do not appear to be particularly involved in the conversation.
87At 19.53.44 Ms McIlrath can be seen using her hands and becoming very animated.
88At 20.08.24 Mr Sheppard reaches over and pats Ms McIlrath on the back. At 20.18.46 Mr Christie can be seen engaged in what appears to be an animated conversation with Mr Sheppard.
89At 20.16.40 Ms McIlrath and her friend stand up and walk out of camera frame toward the exit. At 20.24.27 Mr Sheppard can be seen waving his hand, and then Ms McIlrath walks back into frame and rejoins the table. I infer that Mr Sheppard was waving at Ms McIlrath who, it appears, had walked out with her departing friend before returning to the table.
90At 20.25.59 Mr Sheppard can be seen reaching toward Mr Christie’s face. Mr Christie leans away from Mr Sheppard’s hand and then gets up.
91At 20.29.56 Mr Sheppard can be seen leaning back, apparently laughing, and at 20.33.10 Mr Sheppard is visibly laughing and slaps the table. He then kisses Mr Christie’s hand.
92At 20.34.25 Mr Sheppard takes Ms McIlrath’s hands and shakes them.
93At 20.35.14 Mr Sheppard gets up from the table and moves towards the exit. He moves his bag, which is on the floor, with his feet so that it does not protrude. He is not unsteady on his feet, and walks evenly with no sign of swaying.
94At 20.36.58 Mr Sheppard walks back to his table. He stands for a moment looking around. There are numerous television screens in the bar, which are not in frame. From time to time over the course of the West CCTV, all the members of the Sheppard table look simultaneously in the same direction (for example at 19.58, and 20.40.42). It is possible that they are all looking at something that is occurring on one of the television screens, though there was no evidence given about this. On one of these occasions Mr Sheppard points in the direction he is looking.
95At 20.37 Mr Sheppard resumes his seat. He is steady on his feet.
96At 20.47 Ms McIlrath picks up her bag and extracts her purse. She leaves the table heading toward the bar. Mr Sheppard stands to let her past and pats her on the back as she goes past.
97At 20.48.54 Mr Sheppard turns back towards his table and moves over to Mr Christie and puts his arm around Mr Christie’s shoulders. He appears steady on his feet and there is no sign of swaying.
98Between 20.49 and 20.51 Mr Sheppard moves back and forth a couple of times from his side of the table to Mr Christie’s side of the table. At one point he leans back a little bit which may indicate a slight unsteadiness on his feet. He rises slightly up onto his toes a few times. At 20.51.32 Mr Sheppard hugs Mr Christie.
99Ms McIlrath returns to the table at 20.51.39 having purchased drinks at the bar. Between 20.52.16 and 20.53.04 Mr Sheppard can be seen pouring a drink from one glass to another and then back again. It is not apparent why this is being done. He appears to have a steady hand while undertaking this task and there is no sign of any drink spillage.
100At 20.53.23 Mr Sheppard finishes a drink and takes two empty glasses to the bar. It is possible he is slightly unsteady on his feet. Ms McIlrath leaves the table.
101At 20.56.09 Mr Sheppard pats Mr Christie’s face. At 20.56.31 Ms McIlrath returns to the table and sits next to Mr Christie on the north side of the table. Mr Christie stands up and makes a gesture with his hands over his head and does a little dance at the end of the table.
102At 20.58 Mr Christie appears quite animated and makes hand gestures. At 21.08 Mr Christie leans over and touches Mr Sheppard on the chest. Mr Sheppard makes a gesture that could be a playful boxing gesture or could be dancing. He gets to his feet and he and Mr Christie engage in some sort of demonstration where Mr Christie appears to mirror Mr Sheppard’s movements. Mr Christie then moves away from the table toward the south.
103At 21.19 Mr Christie returns to the Sheppard table and does a little jig. Mr Sheppard stands up and goes around to Ms McIlrath’s side of the table, claps his hands and pats her on the back. He then heads out of camera frame towards the exit. Ms McIlrath picks up her glass of wine and also walks out of camera frame toward the exit, leaving Mr Christie alone at the Sheppard table. At 21.20 Mr Christie takes out his phone. Mr Sheppard returns to the table. Mr Christie puts his phone away.
104At 21.22 Ms McIlrath returns to the table with her drink in hand and sits next to Mr Christie. At 21.24 Mr Christie takes out his phone again. He places it on the table and touches it from time to time. At 21.29 he then takes his phone and moves away and out of camera frame to the south.
105At 21.32.59 Mr Christie returns to the table with drinks. At 21.34 Mr Christie takes his phone out again. He puts it on the table. At 21.40 Mr Christie rubs his hand over his face and at 21.42 he picks up his phone. He appears to be on the phone. Ms McIlrath and Mr Sheppard appear to be engaged in conversation. At 21.45 Ms McIlrath moves away from the table toward the exit. Mr Sheppard leans down and appears to kiss Mr Christie’s hand which is holding the phone.
106At 21.45.58 Mr Christie puts his phone away. At 21.46.43 Ms McIlrath returns to the table, and takes her drink and exits again. She returns to the table at 21.49.
107At 21.51.54 Mr Sheppard stands up and walks around to Mr Christie’s side of the table and embraces Mr Christie. At 21.53.58 Mr Christie has his hands on his face and Mr Sheppard gives him a hug. Ms McIlrath pats Mr Christie on the back.
108At 21.54.26 Mr Christie lifts his head. Mr Sheppard’s arm is still on his shoulder. Mr Sheppard returns to his seat at 21.55.22 and Ms McIlrath continues to rub Mr Christie’s back. At 21.56 Mr Christie has his head down and at 21.57 he rubs his eyes. At 21.57.57 Mr Sheppard walks towards the bar. He is steady on his feet and there is no sign of swaying. At 21.58.34 Mr Sheppard returns to the table with some napkins and hands one to Mr Christie who appears to blow his nose and wipe his eyes. Ms McIlrath continues to rub Mr Christie’s back. At times she gives him a hug and lays her head on his shoulder. All members of the Sheppard table appear to be talking quietly. There are minimal hand gestures or movements between 22.00 and 22.05.
109At 22.05.54 Mr Sheppard moves to the side of the table and makes a movement with his body. Ms McIlrath continues to pat Mr Christie’s back.
110Three minutes later the assault occurs, which will be dealt with later.
Other people displaying signs of intoxication.
111Meanwhile at 19.44 a man sits at the Van Rullen table and is joined at 19.45 by another man. These men stay at the table until 20.12.19. At 20.00.03 one of these men can be seen making a lot of large hand gestures.
112At 20.13.30 Mr Howes arrives with two colleagues. They go to the Van Rullen table. Mr Howes clears away glasses from the table. All the men are holding drinks.
113At 20.15.14 Mr Howes can be seen propped on the bar stool with one leg on the ground, almost on tippy toe. He appears to slightly slip on the bar stool.
114At 20.16.11 two women occupy the table south of the Van Rullen table. Both women make large hand gestures.
115At 20.18.21 Mr Howes appears to be having some difficulty with his bar stool. At 20.18.28 a man sits at the table north of the Sheppard table. For the remainder of his time at the Hotel he appears to be writing in a newspaper. He leaves the table at 20.40. During his time at the table north of the Sheppard table there is no indication that he has interacted or noticed the people at the Sheppard table. For example he does not look over towards them as might be expected if they were being particularly loud or boisterous.
116At 20.18.55 Maria arrives. She embraces Mr Howes. She also greets the two other men at the Van Rullen table. At 20.19.40 one of those men goes to the bar and returns with a glass. He then pours a drink from a bottle of wine on the table.
117At 20.24 Mr Howes stands up and moves to the east of the Van Rullen table. He places his hand near Maria’s arm and she appears to push him in the chest. Mr Howes takes a step back. It is possible he is a little unsteady on his feet, or he may be staggering slightly because of the push.
118At 20.25.24 Mr Howes reaches across Maria to get his drink and then resumes his seat.
119At 20.32.45 the women at the table south of the Van Rullen table are making large hand gestures. It would be fair to describe them as highly animated.
120At 20.41 Mr Howes leans towards a woman walking past and appears to speak. The woman keeps walking. Maria puts her hand on Mr Howes’ arm. Maria fully extends her arm several times as if demonstrating something.
121At 20.51 one of the colleagues at the Van Rullen table gets up and walks toward the exit. He is steady on his feet. He returns to the table at 20.54.
122At 20.56.44 Mr Van Rullen arrives. He stands at the end of the Van Rullen table. Mr Howes stands up and embraces Mr Van Rullen. He helps Mr Van Rullen take his jacket off.
123At 20.57 Mr Van Rullen pulls out a chair from one of the dining tables and sits down to tie up his shoelace. He moves to the Van Rullen table and sits on the bar stool previously occupied by Mr Howes. Mr Howes stands at the east end of the table.
124At 20.58 Mr Howes goes to the bar and returns with a wine glass. He pours a drink from the bottle on the table and gives it to Mr Van Rullen.
125At 20.59.28 Mr Howes and Mr Van Rullen embrace. Mr Howes then approaches the bar. He may be slightly unsteady on his feet.
126At 21.01.49 Mr Howes returns to the Van Rullen table with a bottle of wine, a drink which he hands to Maria, and something else which may be a packet of chips.
127At 21.03.04 Mr Van Rullen puts his arms around Mr Howes. Mr Van Rullen is gesticulating quite a lot with his hands.
128At 21.03.10 Mr Howes takes Maria’s hand, and then Mr Van Rullen and Mr Howes embrace again.
129At 21.04.50 Mr Van Rullen and Mr Howes can be seen swaying back and forth, and Mr Howes taps the table and stamps his foot a few times. It is possible that they are singing, or that Mr Howes is singing and Mr Van Rullen is swaying in time with the song. At 21.05.21 Mr Howes does a little dance on the spot.
130At 21.05.46 Mr Van Rullen gets up, walks toward the table north of the Sheppard table and takes a bar stool. He places it behind Mr Howes at the east end of the table. Mr Howes sits on the bar stool and takes out his phone. He stands up and Mr Van Rullen puts his hands on Mr Howes’ shoulders in a gesture that might be encouraging him to sit down. Mr Howes resumes his seat.
131At 21.13.08 one of the colleagues from the Van Rullen table walks towards the bar. Mr Howes joins him at the bar and puts his arms around the man’s shoulders.
132At 21.15.28 Mr Howes has his arms around his colleague’s shoulders as they move away from the bar. The colleague appears to stagger slightly. Mr Howes and the colleague return to the Van Rullen table carrying drinks. They both appear to be steady on their feet and have no apparent difficulty walking.
133At 21.20.12 Mr Howes makes a gesture with his hands that could be described as an imitation of lawn bowling.
134At 21.32 Mr Howes and Mr Van Rullen embrace.
135At 21.41.55 Mr Howes approaches the bar. At 21.42.16 he returns to his seat empty-handed.
136At 21.50 the two colleagues at the Van Rullen table stand up. Mr Van Rullen stands up and puts his bag across his shoulders messenger-bag style. Maria embraces the two colleagues. Mr Howes embraces Mr Van Rullen. At 21.52 the two colleagues leave. Mr Van Rullen sits down again with his bag still across his chest. Maria sits down.
137At 21.53 Mr Van Rullen stands again and embraces Mr Howes. Mr Howes staggers slightly.
138At 21.55.43 one of the two colleagues returns to the Van Rullen table and appears to speak to Mr Howes. He puts his hands on Maria and Mr Howes. He then embraces Maria and leaves.
139At 21.57.57 Mr Howes stands up. He appears to be steady on his feet.
140At 22.06.05 Mr Van Rullen embraces Mr Howes. At 22.07.00 Mr Howes appears to look over to the Sheppard table.
141At 22.07.22 Mr Howes takes three or four steps towards the Sheppard table. On careful examination Mr Howes appears to be slightly wobbly on his feet.
142One minute later the assault occurs.
Findings on alcohol consumed by Mr Sheppard
143Based on the West CCTV and the times he started and finished drinks (as opposed to the times the drinks were given to him) Mr Sheppard took about an hour to drink the beer, about fifteen minutes to drink the first bourbon and coke, and about 45 minutes to drink the second bourbon and coke. The third bourbon and coke appeared to be about half full when he picked it up to drink it after the assault.
144Mr Sheppard was likely at the Hotel for somewhere between an hour and two hours prior to the CCTV footage commencing. Mr Sheppard said he consumed about four pints of beer in addition to the bourbon and coke. He is seen drinking one pint of beer on the West CCTV footage. Mr Christie said he went to the bar three times during the evening. Given that the West CCTV shows him buying two rounds of drinks, this would mean he bought one round prior to that footage starting. If Mr Sheppard was at the Hotel for 2 hours prior to the West CCTV and had also bought one round of drinks for himself and Mr Christie prior to the West CCTV this would be consistent with his rate of drinking one pint of beer over the course of an hour. However Mr Christie also said that three times was an educated guess, and that though he could remember going to the bar more than once, he could not remember how many drinks he had bought. He accepted that his evidence was based on how he would usually buy drinks in the company of friends rather than any actual recollection. It is also possible that Mr Christie shouted the first round and so the round of drinks Mr Sheppard buys in the North and South CCTV is his first round of the night.
145If I accept Mr Christie’s educated guess and accept that, as Mr Sheppard was “in a shout” with Mr Christie they were likely taking it in turns to buy drinks, this would mean that Mr Sheppard had two to three pints of beer and 2.5 glasses of bourbon and coke at the Hotel prior to the assault.
146It is possible that Mr Sheppard drank more beer before the West CCTV starts, or was drinking at a faster rate earlier in the evening than is shown on the West CCTV. It is possible that he bought two rounds of drinks before the round shown on the South and North CCTV. However this would mean he had bought three rounds of drinks to Mr Christie’s one round which seems unlikely. The order of “the shout” that Mr Christie and Mr Sheppard were in broke down somewhat when Ms McIlrath joined them. Mr Sheppard bought a round for four people, then Mr Christie bought a round, Ms McIlrath bought a round and then Mr Christie bought another round. This might be because the group had lost track of whose turn to it was to buy the round or might be because Mr Sheppard was lagging behind Mr Christie and Ms McIlrath in finishing his drinks as is apparent from the West CCTV.
147It is not possible to be certain how much Mr Sheppard drank at the Hotel that night. Aside from the CCTV, which was incomplete, all of the evidence was unreliable. Ms McIlrath had little to no actual recollection about her or anyone else’s alcohol consumption and based her evidence on her usual practice and what she would expect would have happened. She was not at the Hotel prior to 7.30pm and so was not aware of Mr Sheppard’s alcohol intake before that time.
148Neither Mr Sheppard nor Mr Christie had an actual recollection of their consumption of alcohol that night. Even Mr Christie’s confident assertion that he went to the bar three times was not based on an actual recollection of attending the bar three times. This is unsurprising, given that both men had been drinking and the events occurred more than six years ago.
149Their evidence is based on a reconstruction of the likely rate of consumption of alcohol, given the estimated length of time they were at the Hotel, and their knowledge of their own drinking habits.
150Doing the best I can on the evidence, I find on the balance of probabilities that Mr Sheppard had between six and eight pints of beer at the Mitre Tavern, and two to three pints of beer and two and a half bourbon and cokes at the Hotel. This is based on an assumption that Mr Sheppard attended the bar to purchase a round of drinks twice at the Hotel, and was the recipient of three drinks from Mr Christie and one drink from Ms McIlrath at the Hotel. This is also roughly consistent with Mr Christie’s estimate that he drank between eight and twelve drinks that day.
Findings on signs of intoxication in Mr Sheppard
151Mr Van Rullen submits that Mr Sheppard was showing the following signs of intoxication:
(a) he became increasingly loud;
(b) he became increasingly aggressive;
(c) he became increasingly confrontational;
(d) he became more irritated in response to Howes’ singing; and
(e) he engaged in unwelcome approaches to women.
152Mr Van Rullen relies on Mr Sheppard’s submission that he showed the following signs of intoxication:
(a) he gesticulated with his hands more than normal;
(b) he was more animated than normal;
(c) he looked impatient when buying a drink and was pacing around;
(d) his cognition was impaired in that he misunderstood Mr Christie to have said his father died;
(e) he was more emotional than normal;
(f) his judgment was impaired in that he interpreted Mr Howes’ singing as disrespectful;
(g) he was more aggressive than normal; and
(h) he was more argumentative than normal.
153No medical or legislative definition of intoxication was proposed as the appropriate test of intoxication. Nevertheless it is necessary to arrive at some formulation of what constitutes signs of intoxication, such that staff of a reasonable Hotel could monitor and assess the presence of those signs.
The Patron Management Plan
154Although there are legislative definitions of intoxication and, presumably, medical definitions, no witness was referred to those definitions or was asked how they defined intoxication. To my observation, witnesses used the terms intoxicated and drunk interchangeably, and distinguished that state of being from a lesser degree of alcohol consumption which was variously identified as “affected by alcohol” or as having “had a few drinks” or as having “clearly been drinking”.
155The Hotel’s “Patron Management Plan” (the Plan) provides the following definitions:[3]
Alcohol Affected Person
[3] Joint Court Book (JCB) 135
“An Alcohol affected person is one who has been drinking alcohol and is demonstrating behaviors that indicate their faculties are affected to an observable degree. This is a good time for early intervention before they become intoxicated.
Alcohol Affected signs:
Inhibitions relaxed
Loud behavior
Clothing disheveledFace flushed
Intoxicated
Section 3AB (1) the liquor reform act, defines “intoxicated” in these terms – for the purpose of the act, a person is in a state of intoxication if his or her speech, balance, co-ordination or behavior is noticeably affected and there are reasonable grounds for believing that this is the result of the consumption of liquor.
Signs of intoxication.
A noticeable change in behavior
Being in a general disarray; for example untidy clothing
Becoming quarrelsome and/or argumentative
Complaining about the strength of the drinks
Slurring or mistakes in speech
Clumsiness, knocking things over, fumbling with change
Loss of co-ordination or being unsteady on their feet
Confusion, delays in respondingThe smell of Liquor.
Drunk
A definition of drunk (meaning worse than an intoxicated person) is a person considered so much under the influence of liquor as to be unable to execute safely the occupation in which the person is engaged at the time.
Source: British Medical Journal
Obviously drunk is a more advanced stage of intoxication and licensees and staff should avoid using the incorrect terms for those differing stages of behaviors. Remember a “drunk” or disorderly person is not permitted by law to remain on a licensed premises.”
156The Plan also included a summary of the guidelines issued by the Director of Liquor Licensing which identified signs of intoxication.
157These signs of intoxication were:
(a) Noticeable changes in behaviour:
(i)becoming loud and boisterous;
(ii)becoming argumentative;
(iii)annoying other patrons and staff;
(iv)becoming incoherent, slurring or making mistakes in speech;
(v)becoming physically violent;
(vi)becoming bad tempered or aggressive or using offensive language;
(vii)exhibiting inappropriate sexual behaviour.
(b) Noticeable loss of co-ordination and other physical signs:
(i)Spilling drinks;
(ii)Fumbling and difficulty in picking up change;
(iii)Swaying or staggering and difficulty walking straight;
(iv)Bumping into furniture and other customers;
(v)Glassy eyes and lack of focus;
(vi)Falling down;
(vii)Vomiting.
(c) Noticeable decrease in alertness:
(i)Rambling conversation;
(ii)Loss of train of thought;
(iii)Difficulty paying attention;
(iv)Not hearing or understanding what is said;
(v)Drowsiness or dozing or sleeping while sitting at a bar or table.
158The Plan goes on to say “Remember these signs are not exhaustive or, in a particular case, not necessarily conclusive of intoxication”.
159The Plan suggests some other ways to determine if someone is intoxicated. These include interacting with the person and their friends and asking questions such as, how much alcohol have they consumed and when they last ate, and observing whether they smell of alcohol and how long they have been at the premises.
160The Plan notes that staff need a “Reasonable belief” that a person is intoxicated to refuse service, but that management will support staff if they refuse service on the basis of the belief. The Plan notes that it is unlawful to treat someone unfairly or discriminate against a person on the grounds of actual or assumed disability and tells staff they need to be aware that some disabilities may create the impression that a person is intoxicated.
161The Plan then provides some suggestions of what to do if a person is intoxicated, noting it is against the law to serve someone who is intoxicated and that service must be refused. It suggests staff speak tactfully to the person, repeat firmly that they cannot, by law, be served, suggest ordering food or a non-alcoholic drink and notify the manager or security and other bar staff.
162The plaintiff submitted that the Plan was a “good start” for the Hotel to address the risks posed by intoxicated people but the problem was that the Plan just sat in a folder on a shelf and was not put into practice.
163Mr Sit, the assistant manager at the time, said that the Plan is “in the staff book, but it’s not – like, no one really looks at it. It’s there so if you’ve got time, you can breeze – you can look through it and read through it. We prefer to teach people on the go usually”.
164The Plan refers to a Patron Code of Conduct. Mr Sit thought he had seen such a code of conduct somewhere “in the office”. He had not seen the “RSA manual” or the “RSA briefing paper”.
165Mr Sit said the induction at the Hotel consisted of “pretty much running staff through the venue, showing them where everything is, what happens when we open up, how we close up, what happens – how we serve customers, how we serve food, what happens when we go – when you go to the toilet to wash your hands; that sort of stuff”.
166He said he had not read and signed the venue’s management manuals and was not aware of other staff being provided with the Plan or other manuals.
167Mr Sit said that when security was not engaged for a shift, it was the responsibility of all staff at the Hotel to perform an ongoing assessment of whether a patron was intoxicated.
168He agreed that a drunk patron would not be allowed into the Hotel and agreed that on 30 May 2018 he and his staff had to undertake the assessment of patrons, as there were no security guards on duty. He also agreed that people who were affected by alcohol may very quickly become intoxicated and agreed that the sorts of signs and symptoms set out in the Plan were things that he would look out for in assessing if someone was intoxicated.
169It would be an error to assume that the definitions of intoxication, drunk and alcohol affected set out in the Plan provide a legal standard for the purposes of this case.
170The Plan may provide some assistance in understanding what signs the Hotel had identified as being associated with intoxication.
171However given Mr Sit’s evidence that the plan was not widely read, it is of little relevance to this case. A failure by the Hotel to comply with the Plan does not establish a breach of duty, nor does compliance with the Plan establish that there was no breach.
172It is a matter for the Court to determine whether the Hotel breached the duty it owed to Mr Van Rullen.
173I accept that signs of intoxication can include:
(a) very boisterous behaviour;
(b) aggressive, confrontational or inappropriate behaviour;
(c) visible unsteadiness on feet, swaying, stumbling, difficulty standing or sitting up straight;
(d) a lack of hand-eye coordination;
(e) looking dishevelled, red-faced, sweating;
(f) slurred speech, difficulty answering questions, difficulties with speaking or comprehension;
(g) exaggerated emotional responses;
(h) disinhibition.
174Any one or more of these signs may be present in the absence of intoxication, and a person may be intoxicated without displaying obvious signs. However there are certain stereo-typical indicators of intoxication. I accept Mr Sit’s evidence that the presence of a number of signs of intoxication increases the likelihood that a person is intoxicated.
175Mr Van Rullen says that staff at the Hotel should have monitored his alcohol consumption.
176Based on my findings above, Mr Sheppard consumed two to three pints of beer and 2.5 bourbon and cokes at the Hotel over an approximately four to four-and-a-half-hour period. Mr Sheppard was not back and forth to the bar repeatedly. He was not knocking back shots or sculling beers. This works out to be slightly more than one drink an hour. This is not a rate of alcohol consumption that, without more, would raise a red flag to a reasonable staff member at the Hotel.
177While Mr Sheppard may be able to identify the signs of intoxication in himself, by reference to his memory, his knowledge of his usual behaviour and his interpretation of the CCTV footage, the relevant behaviour for the purposes of this case is what a reasonable person in the position of a staff member at the Hotel could and should have identified as signs of intoxication.
Increased gesticulation, increasingly loud and boisterous, more animated than normal
178Mr Sheppard conceded he has an incomplete memory of the evening. He based his assessment that he was loud on his assumption that he must have been loud in response to Mr Christie being loud. Ms McIlrath also said Mr Sheppard and Mr Christie were loud.
179The West CCTV has no audio and it is not possible to determine from the footage whether Mr Sheppard was loud, argumentative or aggressive in the hours prior to the assault.
180I accept that Mr Sheppard probably was louder than normal. This is consistent with his evidence and the evidence of Ms McIlrath and also the likely state of a man who has been drinking all day. The Hotel had ambient noise. Mr Sit said the Hotel invariably played music through the speakers. Other patrons were in attendance and were dining. It is likely that there was clinking of cutlery and glasses, and the conversations of other patrons to contend with.
181However it is unlikely that Mr Sheppard was so loud that he attracted the attention of other patrons. Mr Van Rullen said there was no interaction between the Van Rullen table and the Sheppard table prior to the incident. Importantly he did not say that he noticed Mr Sheppard, that Mr Sheppard was being unusually loud or boisterous, or was attracting attention from others. There is no indication from the West CCTV that the man at the table north of the Sheppard table, or the patrons at the Van Rullen table, looked at the Sheppard table as might be expected if Mr Sheppard or others were being unusually loud or boisterous.
182The West CCTV shows that other patrons constantly passed back and forth in front of the Sheppard and Van Rullen tables. The tables were located near the exit, through which patrons access the street and also other parts of the Hotel. I would expect that, if Mr Sheppard or members of the Sheppard table were being noticeably loud, at least some of these patrons would react or respond to the Sheppard table, by looking over towards it or by giving it a wide berth. There is no indication by any of the numerous patrons that they notice Mr Sheppard at all. I am not persuaded that Mr Sheppard was sufficiently loud that a reasonable staff member at the Hotel should have identified that as a sign of intoxication.
183Mr Sheppard said he gesticulated more than normal. This may be true. However examination of the West CCTV does not demonstrate any obviously wild gesticulations. At various points Mr Sheppard was animated. As I do not know what “normal” is for Mr Sheppard I cannot determine whether he was gesticulating more than normal. The West CCTV shows numerous other patrons making large and frequent hand gestures, in a similar fashion to Mr Sheppard, including the women south of the Van Rullen table, the men at the Van Rullen table prior to the Van Rullen party, and, from time to time, Mr Van Rullen.
184Mr Christie becomes visibly upset on the West CCTV, consistent with his, Mr Sheppard’s and Ms McIlrath’s evidence. In response both Mr Sheppard and Ms McIlrath engage in what could be describe as supportive behaviour. They hug and pat Mr Christie, and Mr Sheppard gets him some napkins from the bar to wipe his face. From this point Mr Sheppard, Ms McIlrath and Mr Christie move around less, and sit more closely together, Mr Sheppard leaning towards Mr Christie as if engaged in a more intimate conversation. During this passage on the West CCTV neither Mr Sheppard nor Mr Christie were gesticulating, nor could they be described as boisterous or animated.
185I am not satisfied that a reasonable staff member at the Hotel should have identified that Mr Sheppard was loud, boisterous or disinhibited in his behaviour, for example by gesticulating, in such a way as to identify that he was intoxicated.
Increasingly aggressive, confrontational, impatient, irritated.
186Mr Sheppard says on viewing the South CCTV he considers he looked impatient when buying a drink and is pacing back and forth. I have carefully reviewed that footage and do not consider Mr Sheppard showed behaviour that would indicate to a reasonable staff member that Mr Sheppard was impatient. He appeared to be waiting for a drink in the same way that anyone waiting to be served at a bar might wait. He gave the staff member a thumbs-up sign at one stage, presumably to indicate he was waiting to be served. To an outside observer, not familiar with the minutiae of Mr Sheppard’s facial expressions and reactions, there was no indication he was impatient.
187Apart from the one minute preceding the assault, Mr Sheppard says he had an argument at some point in the evening with Ms McIlrath. As best he could recall, this consisted of him assuring her that he was fine when she questioned whether he had had enough to drink and should go home. Ms McIlrath gave no evidence about having an argument with Mr Sheppard, although she thought she had probably told him he should go home because she knew his wife would not be happy. Mr Christie gave no evidence about an argument. I do not accept that this exchange between Mr Sheppard and Ms McIlrath amounted to an argument nor is it evidence that Mr Sheppard was becoming more argumentative, aggressive or confrontational.
188Mr Van Rullen said he thought Mr Sheppard was having a go at Ms McIlrath for “defending” Mr Howes. Neither Mr Sheppard nor Ms McIlrath gave evidence that she had defended Mr Howes, nor that Mr Sheppard had taken exception to it. Mr Van Rullen conceded that his interpretation of what happened might have been inaccurate. I am not satisfied that Mr Sheppard did have a go at Ms McIlrath shortly prior to the assault.
189Mr Sheppard and Mr Christie also had a passionate discussion about sport and cricket. Mr Sheppard described this as debating about the “history of the English and Aussie cricket team and the Ashes and things like that”. I do not accept that this conversation should reasonably have been identified by staff at the Hotel as an indication of Mr Sheppard’s intoxication.
190Mr Christie described their conversation as “we were just casual after, you know, lunch, drinks, having beers, just talking footy, talking about cricket, talking about life, business as well, work, nothing unusual at that point”. He said after he got the phone call from his parents he could remember talking to Mr Sheppard about “how precious life is … just usual sort of banter when you’re I guess you could say intoxicated and you know, got emotional around that point as well. A little bit heart-to-heart you could say”.
191Mr Sheppard said that when Mr Howes came to the table and started singing “I feel like Mr Howes might have heard our conversation because it was – it might have been him trying to be funny but I felt it was inappropriate at the time, given the conversation we’ve just had. And it made me angry. I told Mr Howes to leave. I believe he swore at me and then walked off; I can’t remember what he said, but I remember there being an unpleasant interaction verbally. I also recall, which I thought was Mr Van Rullen yelling something out at me. It could have been Mr Howes, I don’t know, but I thought it’d come from Mr Van Rullen. And I heard something along the lines of, “Who cares about your dad or grandpa”. I can’t remember what it was, but I remember that instantly having a reaction to it. And I was already fired up. And at that point, I walked over to Mr Van Rullen and I said something along the lines of “What did you say?” and I’m pretty sure he called me a dickhead, or something along those lines. And out of frustration I pushed him”.
192I am not satisfied that, at any point prior to Mr Howes coming to the Sheppard table and singing, Mr Sheppard been overtly impatient, argumentative, aggressive, irritated or confrontational such that those behaviours could reasonably have been identified by staff at the Hotel.
Inappropriate interactions with women
193In relation to Mr Sheppard’s interactions with women, I note that although he appears to have spoken to Maria and clasped her hand, whatever was said did not appear to have disturbed Maria sufficiently for her to sit away from him. She took a seat with her back to Mr Sheppard and remained in that position for the rest of the evening. Whatever Mr Sheppard said did not cause Maria, Maria’s boyfriend, Mr Howes, or either of his colleagues, to react in any obvious way. I would expect some sort of reaction from Maria or her friends if Mr Sheppard had said or done anything inappropriate.
194Mr Van Rullen was not in attendance at this time. It was open to Maria to sit on the south side of the table further away from Mr Sheppard, in the seat that Mr Van Rullen took when he arrived. Mr Sheppard gave no evidence about this incident and was not cross-examined about it. I infer that the interaction between Mr Sheppard and Maria was not inappropriate and did not cause her any discomfort and did not cause any of her companions any concern.
195In relation to the plaintiff’s allegation that Mr Sheppard inappropriately followed three women, I note that Mr Sheppard gave no evidence about this and was not cross-examined about it.
196However based on the fact that
(a) he was absent from the table for 13 seconds;
(b) two women were each carrying three drinks;
(c) there was a door a few feet to the north; and
(d) the gesture Mr Sheppard made with his hand,
I infer that Mr Sheppard moved after the women to open the door for them and returned promptly to his seat.
197There is nothing in this interaction that persuades me that Mr Sheppard was inappropriately following or bothering the women.
198Apart from these two occasions, Mr Sheppard otherwise looked at women as they passed his table on four occasions. One of these occasions is the slightest turning of his head. There is nothing in his conduct that could be considered leering, or inappropriate.
199There are nineteen occasions when he completely ignored women walking past his table.
200Mr Christie and Ms McIlrath gave no evidence about Mr Sheppard’s interaction with women, and were not cross-examined about it.
201I am not persuaded that there is anything in Mr Sheppard’s conduct towards women at the Hotel demonstrated on the West CCTV that indicates that Mr Sheppard was behaving inappropriately towards women.
202Prior to the West CCTV footage there is no evidence of Mr Sheppard’s interactions with women.
203I am not persuaded that there was anything in relation to Mr Sheppard’s conduct towards women that should have drawn the attention of staff at the Hotel, or caused them to consider he was or may be intoxicated, or caused them to consider they needed to monitor him more closely.
Other signs of intoxication
204There are a couple of transitory moments where Mr Sheppard appeared unsteady on his feet. There are many more moments where Mr Sheppard seemed entirely steady on his feet.
205There are a number of occasions where Mr Sheppard was able to undertake tasks that tend to suggest he was not intoxicated. At around 19.41 Mr Sheppard displayed no difficulty getting his wallet out from his jacket pocket and returning the wallet to the pocket. There was no fumbling about as one might expect in an intoxicated person.
206At 20.35.15 Mr Sheppard got up from his table and moved towards the exit. As he got up he noticed his bag on the ground, slightly protruding. He moves this bag carefully, using his foot. He is not unsteady, even when balanced on one foot. He does not trip or stumble over the bag. He appears to be conscious that the position of the bag may present a hazard and moves it out of the way. This is not something one would expect an intoxicated person to notice.
207At around 20.52 Mr Sheppard was able to pour with a steady hand a drink from one glass to another and back again without any signs of spillage. This is a task one might expect to present a challenge to an intoxicated person.
208While, on careful examination of the footage, there are some minor signs consistent with Mr Sheppard being intoxicated, such as some slight unsteadiness on his feet, I am not persuaded that his hand gestures, steadiness on his feet or body language more generally as shown on the West CCTV are signs that a reasonable staff member working at the Hotel would be expected to identify as signs of intoxication, prior to the point at which Mr Howes went to the Sheppard table.
Signs of intoxication of other people at the Hotel
209The plaintiff says that there were at least three people out of a small number of patrons at the Hotel that night who were intoxicated – Mr Sheppard, Mr Howes and Mr Christie.
210The Hotel says the intoxication of any other patron is irrelevant as the risk against which the Hotel had a duty to guard was the risk of Mr Sheppard becoming violent due to intoxication.
211I am satisfied that the intoxication of other people may be relevant to an assessment of how vigilant staff were in monitoring patrons. Whether a causal connection can be made between other patrons’ level of intoxication and Mr Van Rullen’s injury is a separate question.
212The level of intoxication of other people at the Hotel is difficult to ascertain. Mr Van Rullen says he was relatively sober, having not drunk since lunch time. I accept that evidence. The West CCTV shows that Mr Howes and his two colleagues had a bottle of wine with them when they sat at the Van Rullen table at 20.13. There is no evidence as to when Mr Howes arrived at the Hotel. When Maria joined them they poured her a glass of wine from the bottle on the table at 20.20. When Mr Van Rullen joined the table Mr Howes poured him a glass of wine from the bottle already on the table at 20.59. Mr Howes then purchased another bottle of wine at 21.01. At 21.18 Mr Howes and one of his colleagues returned from the bar with drinks. Mr Howes is carrying two drinks. It is not possible to tell what these drinks are. Both appear to be in pot glasses and one looks like a beer, the other looks clear. He takes a drink from the clear glass. This might be water, a soft drink or a spirit, although it does not appear to be served in the sort of glass one would expect a spirit to be served in. The beer remains on the table and untouched for the remainder of the West CCTV. Mr Howes’ colleague is carrying one drink which he appears to keep for himself.
213Between about 20.13 and 22.00 the people at the Van Rullen table have shared a bottle of wine between five people, and purchased another bottle although it is not apparent how much of this bottle of wine was consumed prior to the assault. One of the colleagues has another drink at 21.18 before departing at 21.52. Mr Howes purchased two other drinks, one of which remains untouched until the assault and one of which may be water.
214Mr Van Rullen did not call evidence from Mr Howes, Maria or the other colleagues at the Van Rullen table. Mr Van Rullen has not maintained regular contact with Mr Howes who is now living in Western Australia. No explanation was provided as to the absence of the other members of the Van Rullen table. There was no other witness to support Mr Van Rullen’s assertion that Mr Howes was drunk and no other evidence about Mr Howes’ alcohol consumption.
215I am not able to make any findings about the quantity of alcohol Mr Howes had consumed. I accept that Mr Howes was affected by alcohol and on the balance of probabilities would have been intoxicated. This is consistent with Mr Van Rullen’s evidence, and the West CCTV which shows Mr Howes appeared occasionally unsteady on his feet, or swaying slightly.
216There was no indication in the West CCTV that Mr Christie was unsteady on his feet or was swaying. Mr Christie said he was drunk and that he demonstrated this by being slightly more emotional than normal, and having a heart-to-heart conversation where normally he would not have done so. Ms McIlrath said Mr Christie was loud.
Was Mr Sheppard intoxicated at the time of the assault?
217There is no way of conclusively determining Mr Sheppard’s level of intoxication at the time of the assault. He was not subject to a blood-alcohol test or a breath test.
218Based on all the available evidence, on the balance of probabilities, I find that Mr Sheppard was intoxicated at the time of the assault.
219This is based on my findings about the level of his alcohol consumption and the evidence about his behaviour leading up to the assault.
220I accept Mr Sheppard’s and Mr Christie’s evidence that they were both more emotional than normal and I accept that alcohol was likely responsible for that heightened degree of emotion.
221Although a phone call from his parents triggered Mr Christie’s emotional response, I consider it unlikely that he would have had that emotional response if he was sober, given that he said he spoke to his parents every week.
222Had Mr Christie and Mr Sheppard not become emotional, and had Mr Christie not been crying, it is unlikely that Mr Sheppard would have interpreted Mr Howes singing “You’ve Lost that Loving Feeling” as inappropriate. He might have thought it was annoying and asked Mr Howes to leave, but it was the song in conjunction with the heightened emotion that he and Mr Christie were displaying that caused him to form the view that Mr Howes was disrespecting them.
223It is also unlikely that, but for the presence of alcohol, Mr Sheppard would have responded so immediately and aggressively to Mr Van Rullen’s comment to not be “a dickhead”. I accept Mr Sheppard’s evidence that this is out of character for him. Mr Sheppard could not remember what was said but thought it was something along the lines of “who cares about your dad or your grandfather?”. This was clearly a misunderstanding of what Mr Van Rullen actually said. While anyone might be unhappy about the suggestion that they were being “a dickhead”, it is not such a scandalous allegation that a violent response would ordinarily be anticipated.
224I accept that the combination of Mr Van Rullen swearing and Mr Sheppard misunderstanding what he had said, created in Mr Sheppard’s alcohol-affected mind, a need to, in some way, stand up for Mr Christie, who had displayed a vulnerability.
225To that extent I reject the submission by the Hotel that Mr Sheppard’s actions were prompted solely by his view that Mr Christie had been disrespected and not because of his level of intoxication. It was a combination of both factors that caused Mr Sheppard to respond as he did.
226I am satisfied that Mr Christie was probably intoxicated, given his evidence about his level of alcohol consumption. Aside from becoming emotional, I did not identify signs from the West CCTV of intoxication in Mr Christie.
227I am also satisfied, on the balance of probabilities, that Mr Howes was intoxicated. Mr Van Rullen said he was, and he can be seen on the West CCTV occasionally seeming slightly unsteady on his feet. He had, on Mr Van Rullen’s evidence, been drinking since lunchtime.
228However, in the absence of any evidence that Mr Howes was slurring his words, was loud, aggressive, overly emotional or in any other way displaying symptoms of intoxication, I am again reliant on the West CCTV to ascertain what staff at the Hotel would have observed.
229Only very close and careful observation would have detected the handful of occasions when Mr Howes appeared unsteady on his feet. Unless a staff member was looking at him at that exact time, that unsteadiness would not have been detected. There were numerous other occasions when Mr Howes stood and walked without any swaying or unsteadiness.
230Further I am not able to conclude that Mr Howes would not have sung to the Sheppard table if he had not been intoxicated. On Mr Van Rullen’s evidence, Mr Howes had been to the Carole King musical and was inspired by that and “he kept singing all these songs at work”. Mr Van Rullen described Mr Howes as a quirky guy. Mr Howes may be the sort of person who would sing to others at the pub, regardless of his level of alcohol consumption.
231In finding that Mr Sheppard, Mr Christie and Mr Howes were probably intoxicated, I am not adopting a legislative or medical definition of intoxication. Nor am I making a finding that his intoxication was evident to others, including Hotel staff. I will deal with that aspect of the case in due course.
Duty owed by the Hotel.
232Mr Van Rullen submits that, if I am satisfied that Mr Sheppard was intoxicated at the time of the assault, the question must be how he was able to become so intoxicated and the answer is because the Hotel breached its duty of care to him.
233Section 48 of the Wrongs Act (Vic) 1958 provides that a person is not negligent in failing to take precautions against a risk of harm unless:
(a) The risk was foreseeable; and
(b) The risk was not insignificant; and
(c) In the circumstances, a reasonable person in the person’s position would have taken those precautions.
234In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider, amongst other relevant things:
(a) The probability that the harm would occur if care were not taken;
(b) The likely seriousness of the harm;
(c) The burden of taking precautions to avoid the risk of harm;
(d) The social utility of the activity that creates the risk of harm.
235The plaintiff pleads that the Hotel owed him:
(a) a statutory duty not to permit drunken or disorderly persons on the premises;
(b) a common law duty to take reasonable care to prevent the occurrence of drunk, violent or quarrelsome conduct at the premises; and
(c) a common law duty to take reasonable care not to permit drunken or disorderly persons to be on the premises.
236The plaintiff pleads that drunk, violent or quarrelsome persons, and drunken and disorderly persons posed a foreseeable risk of injury to the plaintiff.
237The plaintiff pleads numerous breaches of the alleged duty by the Hotel. Those duties can be distilled as follows. The Hotel breached its duty to Mr Van Rullen by:
(a) allowing Mr Sheppard to enter its premises;
(b) continuing to serve both Mr Sheppard and Mr Howes alcohol, which encompasses an allegation that the Hotel failed to monitor Mr Sheppard as he became increasingly intoxicated; and
(c) failing to intervene in the minute or so before the assault when the situation was clearly escalating so as to prevent the assault.
238The primary dispute between the parties is the content of the duty. The plaintiff submits that the duty required the Hotel to monitor and inquire as to the alcohol intake and food intake of patrons.
239The Hotel relied on the formulation of the duty in Cole v South Tweed Heads[4] where the Court held the respondent owed the appellant only the ordinary general duty of care owed by an occupier to a lawful entrant.
[4] [2004] HCA 29; 217 CLR 469, paragraph [65]-[73]
240In Adeels Palace Pty Ltd v Moubarak[5], the Court held Adeels Palace owed the plaintiffs a duty to take reasonable care to prevent injury to patrons from the violent, quarrelsome or disorderly conduct of other persons. That duty was consistent with the duty imposed by statute and was not absolute. It was a duty to take reasonable care. Although it is a duty directed to controlling the conduct of others, it is a duty capable of performance, and supported by statutory power to prevent entry and remove persons from premises.
[5] [2009] HCA 48
241Plainly enough a duty to take reasonable care to prevent injury to patrons from violent, quarrelsome or disorderly conduct must impose a duty on the Hotel to take certain steps to guard against the risk that patrons will become violent, quarrelsome or disorderly.
242The Hotel says even if the Court was satisfied that it breached its duty, it could not be satisfied that any breach caused Mr Van Rullen’s injury.
243The Wrongs Act (Vic) 1958 provides that in order to determine that negligence caused particular harm I must be satisfied that:
(a) the negligence was a necessary condition of the occurrence of the harm; and
(b) it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused.
244Other than by refusing Mr Sheppard entry, the Hotel says I could not be satisfied that refusing service or intervening could have prevented the injury.
245I am satisfied that:
(a) a defendant in the position of the Hotel owed Mr Van Rullen a duty to take reasonable care to prevent injury to him caused by an intoxicated patron;
(b) the content of that such a duty included a requirement to:
(i)assess patrons for signs of intoxication; and
(ii)refuse entry to persons who were visibly intoxicated; and
(iii)refuse service to patrons who became visibly intoxicated on the premises.
(c) The content of that duty might include a duty to intervene to prevent an assault, provided any such intervention was reasonable in all the circumstances. In assessing what is reasonable in all the circumstances the risk of harm to an employee of a defendant in the position of the Hotel must also be considered.
RSA certificates
246The Hotel was unable to provide RSA certificates for all staff. Mr Sit’s unequivocal evidence was that the Hotel would not employ someone without an RSA certificate as that could result in a loss of the Hotel’s liquor licence.
247He said the two staff on duty that night who were serving alcohol both had RSA certificates, notwithstanding that not all certificates were in evidence.
248I am satisfied that it is likely that the staff did have RSA certificates given the evidence, and the fact that such a certificate is readily obtained and the consequences for the Hotel of not ensuring staff had such a certificate.
249Ultimately, however, whether staff had certificates is irrelevant if staff were, regardless of the presence or absence of certificates, serving alcohol responsibly.
Did the Hotel breach its duty by allowing Mr Sheppard onto its premises?
250At the time Mr Sheppard attended the Hotel, between 5.30pm and 6.30pm, he had drunk between 6 and 8 pints of beer since midday.
251Mr Sheppard gave no evidence about his usual consumption of alcohol, other than that this level of alcohol consumption was out of character for him.
252Mr Christie said Mr Sheppard was affected by alcohol but “I wouldn’t say he was intoxicated to the point, you know – towards the end of the evening when we left” the Hotel.
253I take it that, to the best of Mr Christie’s recollection (which is admittedly hazy), Mr Sheppard became more intoxicated over the course of the evening at the Hotel.
254Given my findings about the signs and symptoms Mr Sheppard was displaying from 7.30pm onwards, I cannot be satisfied that Mr Sheppard was showing any obvious signs of intoxication at the time that he arrived at the Hotel.
255The plaintiff’s submission seems to boil down to this: because Mr Sheppard had been drinking all day, he must have been intoxicated and must have been showing obvious signs of intoxication.
256However there is no evidence he was displaying any of the signs or symptoms of intoxication at the time he arrived at the Hotel.
257I am not persuaded that the Hotel ought reasonably to have refused him entry to the premises.
258There is no evidence as to when Mr Howes attended the premises or his state of intoxication when he arrived. I am unable to conclude that Mr Howes should have been refused entry to the premises or that the Hotel breached its duty by failing to exclude him.
Did the Hotel breach its duty by continuing to serve alcohol to Mr Sheppard?
259The plaintiff says that if the Hotel had undertaken its responsible service of alcohol obligations properly, Mr Sheppard would have been assessed as being drunk and he would have been asked to leave or refused service.
260The plaintiff relies on a report of Dr Tony Zalewski, a public safety consultant and former police officer with a PhD in Systems of Security, a law degree and a master’s degree in criminology. Dr Zalewski was engaged by Mr Sheppard.
261Dr Zalewski says the Hotel knew or ought to have known of the risk of harm associated with management of highly intoxicated patrons. He says the Hotel should have identified risks associated with[6]:
(a) Monitoring;
(b) Intervening; and
(c) Managing the risk
of intoxicated persons and ensured precautions were taken against the risk of harm.
[6] JCB 79
262Dr Zalewski’s report identifies a number of precautions he says should have been taken by the Hotel. Although they are rather lengthily formulated, they can be summarised as follows: the Hotel should have ensured staff were trained to identify, monitor and manage intoxicated people.[7]
[7] JCB 79
263This accords fairly neatly with the evidence of Mr Sit that staff are trained both through their RSA course and on the job to identify, monitor and manage intoxicated people.
264There was nothing in Dr Zalewski’s opinion that assisted me to conclude that the Hotel had failed in its obligations.
265The signs of intoxication I observed on West CCTV footage were minimal. There were other signs to suggest Mr Sheppard was not intoxicated including:
(a) his ability to pour a drink from one glass to another with a steady hand and without spillage;
(b) his lack of difficulty buying drinks and retrieving his wallet; and
(c) moving his protruding bag with his feet.
266I am not persuaded on the basis of the CCTV footage that a staff member, monitoring Mr Sheppard over the course of his time at the Hotel, ought reasonably to have identified that he was intoxicated.
267CCTV footage is not a substitute for real life observation. I accept that there may have been additional signs or symptoms that are not discernible from the footage, in particular the volume and content of conversation.
268Mr Van Rullen submits that, aside from the West CCTV, there were signs that Mr Sheppard was intoxicated. I have dealt with these already.
269Mr Van Rullen submits that staff were more preoccupied with closing the Hotel and day-to-day duties than monitoring the patrons. Mr Sit was not monitoring patrons at the time of or in the lead-up to the assault as he was upstairs counting the till.
270Mr Van Rullen submits that an assessment of Mr Sheppard’s level of intoxication was not undertaken on 30 May 2018. Had such an assessment been undertaken staff would have identified that Mr Sheppard was intoxicated and would either have refused to serve him further alcohol or would have asked him to leave the premises. Mr Van Rullen submitted, and Mr Sit accepted, that patrons are more likely to become intoxicated later in the evening and this requires staff to remain aware and to be conducting ongoing assessments of patrons and be particularly vigilant later in the evening.
271I do not understand Dr Zalewski’s opinion to establish that staff must keep every patron under constant surveillance. This would be both impossible and impractical.
272The West CCTV shows thirteen occasions over the course of about two and a half hours where a server attended either the Van Rullen table, the Sheppard table, tables either side, or walked past and observed the tables. The attendances appear to be primarily to pick up glasses and menus. On one occasion, at 21.14.26 a server attends the Sheppard table to remove the menu. This is consistent with Mr Sit’s evidence that part of the clean-up at the end of the night is to wipe down the menus. Mr Sheppard is clearly aware of the server’s presence because he accommodates it by moving his body and lifting his hand and arm to enable to server to take the menu.
273The last staff interaction at the tables prior to the assault occurred at 21.49 when a server attended the Sheppard table and took empty glasses and then attended the Van Rullen table and cleared away empty glasses. This was 17 minutes before Mr Howes attended the Sheppard table.
274At 21.54, 12 minutes before Mr Howes attended the Sheppard table, a server walked past and looked at the Sheppard table.
275I accept Mr Sit’s evidence that these sorts of incidental interactions between staff and customers provide staff with an opportunity to observe patrons and detect intoxication. Mr Sit said staff are trained both in the RSA course and on the job, to recognise signs of intoxication in patrons and how to manage these situations. He said signs include loss of coordination, slurring voice and being loud and boisterous. If these signs are noticed together, he said staff are trained to offer a patron water, ask them to slow down or, if they refuse, ask them to leave the premises.
276I do not accept that staff could be reasonably expected to identify that, for example, Mr Sheppard had misunderstood what Mr Christie said about his phone call, and had had an unusually emotional reaction in response.
277I infer that, over the course of the thirteen interactions that staff had with Mr Sheppard at or near his table, there was nothing in his behaviour that caused staff members to consider that Mr Sheppard should be refused service.
278The lack of behaviour sufficient to attract the attention of staff is supported by Mr Van Rullen’s evidence.
279Mr Van Rullen did not notice Mr Sheppard prior to Mr Howes attending the Sheppard table, tending against a conclusion that Mr Sheppard was particularly loud, boisterous or aggressive. Ms McIlrath and Mr Christie both gave evidence that relied more on what they expected would have happened rather than any actual recollection. In particular Ms McIlrath’s evidence that Mr Sheppard was “ a bit red in the face type thing” struck me as something she had assumed might be present in a person who was intoxicated, rather than an actual recollection of Mr Sheppard’s presentation that night. When challenged she said “well what I mean was, they were both talking at us, you know”.
280I am not persuaded that the South CCTV shows Mr Sheppard had a red face.
281Although it was submitted that Mr Sheppard became more intoxicated over the course of the evening, the plaintiff did not identify at what point he says Mr Sheppard reached a level, or displayed signs, of intoxication that were such that a reasonable staff member should have refused him service.
282In fact the West CCTV does not support a conclusion that Mr Sheppard became increasingly intoxicated. He appears much the same from the start of the West CCTV until about 21.45 when Mr Christie appears to finish his phone call and the Sheppard table became noticeably less animated. This was the time when, on Mr Sheppard’s evidence, he was engaged in a quiet and emotional conversation.
283To detect the earlier momentary signs of intoxication such as slight unsteadiness would require a degree of surveillance that would impose too high a duty on the Hotel.
284I am not persuaded that the Hotel breached its duty by continuing to serve alcohol to Mr Sheppard prior to the assault.
285For completeness I will deal briefly with the question of whether the Hotel should have refused service to Mr Howes.
286Mr Howes displayed slightly more signs of intoxication than Mr Sheppard, being slightly unsteady on his feet on a few more occasions than Mr Sheppard, and appeared to be generally more “gregarious”, for example repeatedly embracing Mr Van Rullen, getting up and down from his bar stool and doing a little dance or jig.
287Again, however, those signs are identifiable from a careful review of the footage and, other than a general assertion that Mr Howes was “drunk” there is no evidence that Mr Howes was showing signs of intoxication that should reasonably have been detected by staff. In any event, I am not persuaded that it was Mr Howes’ intoxication that caused him to go to the Sheppard table and start to sing. Therefore, even if staff had refused to serve Mr Howes, I am not satisfied, on the balance of probabilities, that this would have avoided what became the catalyst for the assault.
288I am not persuaded that there was anything in Mr Howes behaviour that ought to have resulted in staff removing him from the premises. No one gave any evidence that, prior to attending the Sheppard table to sing, Mr Howes was interfering with any other person, behaving unreasonably, argumentative, confrontational or inappropriate.
Did the Hotel breach its duty by failing to intervene prior to the assault?
289Mr Van Rullen submits that, from the point that Mr Howes began singing, it was obvious that he was intoxicated and that presented a foreseeable risk to Mr Van Rullen and other patrons.
290The risk presented by an intoxicated patron is that the person will or might become aggressive or cause harm to himself or others.
291There was about one minute between Mr Howes starting to sing and Mr Sheppard assaulting Mr Van Rullen. Mr Van Rullen says this was more than enough time for a staff member to intervene.
292Such an intervention could have been either by a staff member physically going over to the table and checking up on the patrons, or by calling out from the bar words to the effect of “hey stop”.
Mr Van Rullen’s account of the assault
293Mr Van Rullen said that leading up to the assault Mr Howes “annoyingly started singing a song” and Mr Sheppard “didn’t take too kindly to him standing there doing that”. Mr Van Rullen said he leaned forward and made eye contact with Ms McIlrath who was facing him and asked whether Mr Howes was annoying them. He said Ms McIlrath said something like “No he’s funny, its ok”.
294Mr Van Rullen says at that point he cannot be certain what was said or if his recollection is accurate but it looked to him as if Mr Sheppard “was having a go at [Ms McIlrath] for standing up for Dan”. Mr Van Rullen said that “kind of got my back up” and so he said to Mr Sheppard something like “Mate, he’s had a few drinks. He’s just having some fun. Don’t be a dickhead”.
295Mr Van Rullen said Mr Sheppard looked over at him and then walked over to the table. He said Mr Sheppard stood at the end of the Van Rullen table for a few moments and then walked around Mr Howes towards Mr Van Rullen. Mr Van Rullen says he thinks he was sitting but when Mr Sheppard moved towards him he stood up. He said “I think he was saying something to me but I don’t remember what it was. That part of it is kind of no longer in my memory”. Mr Sheppard gave Mr Van Rullen “a big shove” which was unexpected. Mr Van Rullen fell back, stumbled over the bar stools and hit his face and head on the glass wall.
296Mr Van Rullen said that after the incident, Mr Sheppard was “trying to still get me for a few seconds after he pushed me”.
297The first thing he noticed was he had a sore head and a bloodied nose. With Mr Howes’ assistance he got to his feet and then a staff member brought him a chair and icepack.
298He said when he was sitting in the chair after his fall he apologised to Mr Sheppard for calling him a dickhead and Mr Sheppard said “go and get fucked”.
299Mr Van Rullen said he did not have the impression that Mr Sheppard was aggressive or feel threatened by Mr Sheppard until Mr Sheppard continued to move past Mr Howes and towards Mr Van Rullen. He said he was aware that Mr Sheppard was not happy when Mr Sheppard turned around and looked at him.
300Mr Van Rullen says he “probably knew instantly” that it was a mistake to have called Mr Sheppard a dickhead.
301Up to the point that Mr Howes approached the Sheppard table, Mr Van Rullen said there was no interaction between the Sheppard and Van Rullen tables.
Mr Sheppard’s account of the assault
302Mr Sheppard said in the lead-up to the assault, Mr Christie, who is originally from the UK, received a phone call from his parents. At the time, Mr Sheppard misunderstood the content of that call and thought Mr Christie’s father had died.
303Both Mr Sheppard and Mr Christie said that they had quite an intense, emotional conversation. Mr Christie said Mr Sheppard “wears his heart on his sleeve”.
304Mr Sheppard said when Mr Howes approached the table singing, he felt it was inappropriate, and assumed that Mr Howes had overheard their emotional conversation. He said it made him angry and he told Mr Howes to leave. He cannot remember what Mr Howes said exactly, but believes he swore at him. He remembers someone yelling something at him. He thought it was Mr Van Rullen but it might have been Mr Howes. He heard something along the lines of “who cares about your dad or your grandpa”.
305He says he had an instant reaction and he was “fired up”. He walked to Mr Van Rullen and asked him what he had said. He said he was “pretty sure” Mr Van Rullen called him “a dickhead or something” and out of frustration he pushed him.
306He said his behaviour was out of character, that he is normally the person breaking things up, and that he does not “physically” get into arguments. He said he pushed Mr Van Rullen rather than punching him, but that pushing someone was “a big act” for him.
Other evidence of the assault
Mr Christie
307Mr Christie said he remembered getting a little bit upset after talking to his family on the phone and that “for a brief period of time” he, Mr Sheppard and Ms McIlrath had a quiet but emotional conversation.
308When asked whether he remembered someone coming to their table and singing Mr Christie said “like, thinking back when you’re saying that, vaguely”.
309He said “I remember there was a slight altercation, perhaps, and maybe a misjudgement, miscommunication”. He said it was “very very hazy in my memory” but he did recall there was definitely a “surprise”. It is not clear from Mr Christie’s evidence that he has any actual recollection of the assault. It is apparent that Mr Christie’s memory is very limited about the events leading up to the assault. He thought someone might have come to the Sheppard table to ask them to “keep it down” but he could not be sure. No one else gave that evidence. He thought that person upset Mr Sheppard and then came back again and that was when Mr Sheppard pushed him. This recollection is plainly incorrect. It does not accord with any of the other evidence of what happened nor the West CCTV.
310After the assault Mr Christie said “then we continued having a drink for a period of time, not that long, and I recall that we parted ways and just went home”. He did not think he and Mr Sheppard had spoken in the week after the assault.
Ms McIlrath
311Ms McIlrath said she remembered Mr Christie getting quite upset but that he was not making a lot of sense. She said she remembered at some point “somebody at the table behind me that was talking to me”. At the time of the assault she was sitting on the north side of the Sheppard table and there was no one behind her. When asked about this she said she thought she was sitting facing the door (that is, on the south side of the table). In fact, the West CCTV shows that she had moved from the south side to the north side of the table at 20.56.
312She could not remember what the conversation with the person at the other table was about but remembered that “at one point they were singing something”. This reference to more than one person singing may refer to the period in the West CCTV where Mr Van Rullen and Mr Howes can be seen swaying together while Mr Howes apparently taps out a rhythm and stamps his foot.
313Ms McIlrath thought there might have been some discussion about football and then Mr Sheppard said something like “Don’t talk about my grandfather like that” and then Mr Sheppard pushed someone that was sitting on a stool. She said they then left. She said “I was certainly leaving because I didn’t want anything to escalate further, which it didn’t, we just sort of left”.
314She thought that after they left the hotel she had dropped Mr Christie off in a taxi. She did not remember having any conversation outside the Hotel. She thought Mr Sheppard had messaged her the following day asking what she remembered, and she believed he said that he “should not have pushed that guy” but she did not have a good recollection and “couldn’t recall bits and pieces of the evening”.
West CCTV
315The West CCTV also provides evidence of the events leading up to the assault.
316Between 21.20 and 21.45 Mr Christie takes out and puts his phone away a number of times. On occasions it is evident that the phone is in use, as it can be seen displaying light. It is not obvious whether Mr Christie is engaged in an audio or video call.
317At 21.53.58 Mr Christie has his hands on his face and Mr Sheppard comes over to him and gives him a hug. Ms McIlrath pats Mr Christie on the back.
318At 21.55.22 Mr Sheppard returns to his seat. Ms McIlrath continues to pat Mr Christie on the back. At 21.56.52 Mr Christie has his head down and at 21.57.31 he rubs his eyes. At 21.57.57 Mr Sheppard goes to the bar and returns at 21.58.34 with some napkins. Mr Sheppard hands a napkin to Mr Christie who uses one to wipe his eyes and/or blow his nose. Ms McIlrath continues to pat Mr Christie on the back and occasionally to give him a hug.
319At 22.07.00 Mr Howes appears to look towards the Sheppard table. At 22.07.22 Mr Howes takes three or four steps over to the Sheppard table and stands at the end of the table. His hand rests on the table and moves up and down a few times. Mr Sheppard’s face is only partially visible in the West CCTV at this point. It is not clear but it is possible he speaks to Mr Howes at 22.07.43.
320At 22.07.47 Mr Sheppard turns his head to look at the Van Rullen table. He makes a hand gesture toward the Van Rullen table.
321At 22.07.53 Mr Howes side-steps back to his own table.
322Ms McIlrath points across the Sheppard table to the Van Rullen table. Mr Sheppard turns back to face Mr Christie and Ms McIlrath.
323Maria turns to look at the Sheppard table.
324At 22.08.02 Mr Van Rullen, who is partially obscured by Mr Howes, makes a hand gesture and leans back in his seat in a gesture consistent with him attempting to see Ms McIlrath. Ms McIlrath appears to be interacting with Mr Van Rullen across the two tables.
325At 22.08.04 Mr Sheppard turns his body around and faces the Van Rullen table.
326At 22.08.07 Mr Sheppard takes two steps toward the Van Rullen table and stops between Maria and Mr Howes.
327At 22.08.12 Mr Sheppard takes three steps around Mr Howes towards Mr Van Rullen.
328Between 22.08.12 and 22.08.19 Mr Sheppard stands next to Mr Van Rullen.
329At 22.08.20 Mr Sheppard violently pushes Mr Van Rullen. Mr Van Rullen falls to the floor.
330Mr Sheppard immediately walks away from Mr Van Rullen. Mr Howes momentarily puts his hands on Mr Sheppard. Mr Sheppard continues to walk towards the Sheppard table and Mr Howes walks toward Mr Van Rullen. Maria stands up and moves towards Mr Van Rullen.
331At 22.08.25 Mr Christie gets up from his seat and moves towards Mr Sheppard.
332At 22.08.28 Mr Sheppard returns to the Sheppard table and picks up his drink. Mr Christie briefly places his hand on Mr Sheppard’s back and walks slightly past Mr Sheppard towards the Van Rullen table. Ms McIlrath stands up.
333At 22.08.35 Mr Sheppard puts his drink down and stands by the Sheppard table facing the Van Rullen table. Ms McIlrath moves to stand at the end of the Sheppard table.
334At 22.08.43 Mr Christie appears to say something. Maria turns to face Mr Christie and puts her hand out in a “stop” gesture” Ms McIlrath puts both her hands out in a “stop” gesture.
335At 22.08.50 a staff member goes to the Van Rullen table.
336At 22.08.59 the staff member approaches Mr Sheppard and appears to speak to him. Mr Sheppard is standing between the Sheppard table and the Van Rullen table.
337At 22.09.05 the staff member puts his hand on Mr Sheppard’s shoulder. At 22.09.08 Mr Christie picks up his belongings from the Sheppard table. At 22.09.14 the staff member appears to be still speaking to Mr Sheppard and puts his hand on Mr Sheppard’s arm. At 22.09.26 Mr Sheppard bends down to pick up his bag. At 22.09.26, bag in hand, Mr Sheppard picks up his drink and finishes it. He then moves toward the door. At 22.09.34 Mr Sheppard turns back towards the Van Rullen table. The staff member turns to face Mr Sheppard. Ms McIlrath puts her hand out again in a “stop” gesture. At 22.09.48 Mr Christie appears to say something. Mr Sheppard, Ms Christie and Ms McIlrath all leave.
338At 22.10.29 a staff member pulls a chair from the table behind the Van Rullen table and Mr Howes helps Mr Van Rullen into the chair. The staff member then goes to the bar and picks up a phone. At 22.10.54 Mr Sit, the assistant bar manager on duty on the night, approaches Mr Van Rullen. At 22.11.10 Mr Sit goes to the bar and picks up the phone. At 22.12.00 the staff member takes an icepack to Mr Van Rullen. The video then ends.
Mr Sit
339Mr Sit said if he heard a patron swearing aggressively at another patron he would intervene by coming over to the table and asking whether everything was all right. He would not yell out “hey stop” or similar words from the bar because in his experience, yelling out from the bar tends to exacerbate the situation. He said “we’d like to be calm and collected when we go over, we don’t want to add to the situation.” He said it takes about 17 seconds to get from behind the bar to the Van Rullen table.
340When asked whether someone singing at the Hotel at 10.00pm would cause him to respond in any particular way, Mr Sit said “I mean everyone sings if they’re happy” and that it depended on the context.
Findings on breach of duty for failing to prevent the assault.
341The recollections of the various witnesses significantly differ in detail, but the general substance is largely consistent, which is that there was no interaction between the tables until Mr Howes went to the Sheppard table and began singing. This event appears to have loomed large only to Mr Sheppard, who perceived it as inappropriate, and Mr Van Rullen, who saw it as the catalyst for subsequent events. Mr Christie barely remembered it and then only when prompted. Ms McIlrath remembered singing but not as the catalyst for the assault.
342I do not consider that any of the witnesses was untruthful or attempting to mislead the court. Rather, the consumption of alcohol and the passage of time, together with the foibles of memory, has meant that the specific events leading up to the assault are recalled differently, and in some cases lost altogether.
343I accept that Mr Van Rullen’s account is likely to be the most accurate, given that he was not intoxicated, and that the impact of the assault on him was such that he had greater reason to retain a memory of the events of that night. His account largely accords with the West CCTV.
344I am satisfied that, from about 21.51, Mr Christie and Mr Sheppard were engaged in an emotional conversation. Mr Christie was clearly upset, as can be seen by him hanging his head, rubbing his face and eyes. He was being comforted by Ms McIlrath and Mr Sheppard who from time to time embrace him and pat him on the back. Mr Sheppard got him some napkins to wipe his eyes. The West CCTV shows the three of them are otherwise less animated that they were prior to Mr Christie’s phone call, consistent with them having a quiet and emotional conversation as Mr Christie recalled.
345Consistent with the evidence of Mr Van Rullen and the West CCTV I am satisfied that Mr Howes sang to the Sheppard table at 22.07.22. Although there is no audio, Mr Howes can be seen tapping his hand on the table as if in time to music. At 22.07.43 Mr Sheppard turned toward the Van Rullen table. It is not clear what prompted this. This may be the point at which Mr Van Rullen called across to ask whether Mr Howes was bothering the table.
346At 22.08.02 Mr Van Rullen and Ms McIlrath appeared to be interacting across the tables. This happened after Mr Howes returned to the Van Rullen table at 22.07.53 so it is unlikely that this is the interaction in which Mr Van Rullen asked if Mr Howes was bothering them.
347I am not persuaded that Mr Sheppard and Ms McIlrath got into an argument about Ms McIlrath defending Mr Howes. Both Mr Sheppard and Ms McIlrath gave evidence about a conversation about his drinking at some point in the evening, but neither of them places this conversation immediately before the assault. Neither gave evidence that they had a disagreement about Mr Howes. Mr Van Rullen cannot be sure whether his interpretation of what transpired between Mr Sheppard and Ms McIlrath was correct.
348At 22.08.04 Mr Sheppard turned around and fully faced the Van Rullen table and then walked towards that table. It is likely that this was precipitated by Mr Van Rullen telling Mr Sheppard not to be a dickhead, and therefore it is likely that the interaction that occurred at 22.08.02 was this interaction.
349This is also consistent with Mr Sheppard’s evidence that he immediately “fired up”. It is also consistent with Mr Van Rullen’s evidence that he realised that Mr Sheppard was “not happy” when he turned around to face the Van Rullen table and he “probably knew instantly” that it had been a mistake to call Mr Sheppard a dickhead.
350I therefore find that it was at 22.08.07 that Mr Sheppard formed the intention to go to the Van Rullen table to engage in some way with Mr Van Rullen. I do not know whether Mr Sheppard intended, at that point, to assault Mr Van Rullen but he intended to take some action in response to what he had perceived was inappropriate conduct from Mr Howes and inappropriate language from Mr Van Rullen.
351This is the moment when, after turning to look directly at Mr Van Rullen, Mr Sheppard started to move toward the Van Rullen table.
352There were thirteen seconds between Mr Sheppard turning to face the Van Rullen table and the assault.
353However, although Mr Van Rullen appreciated immediately upon Mr Sheppard turning around that Mr Sheppard was not happy after the “dickhead” comment, it was not until Mr Sheppard was standing in front of him that he considered himself to be threatened or in danger.
354Mr Sheppard reached Mr Van Rullen at 22.08.12. Mr Sheppard thinks he said something to Mr Van Rullen like “what did you say” but did not say whether this was as he was walking towards or when he was standing in front of Mr Van Rullen. Mr Van Rullen’s memory of that period has gone. There is no evidence that Mr Sheppard was shouting, speaking in a raised voice or issuing threats. He did not give any evidence about the volume of his voice. The reactions of the people around Mr Sheppard are not consistent with Mr Sheppard displaying overt signs of aggression.
355Neither Maria nor Mr Howes took any obvious action as Mr Sheppard moved past them. On Mr Van Rullen’s evidence it was not until Mr Sheppard was standing in front of him that he realised he posed a threat.
356Neither Ms McIlrath nor Mr Christie responded at all to Mr Sheppard’s conduct until a few seconds after the assault.
357The West CCTV footage does not show Mr Sheppard rushed toward the table, or lunged at Mr Van Rullen. Instead he walked in a steady manner, stopped between Mr Howes and Maria and then moved to Mr Van Rullen. In total he took five steps. The violent push was unexpected according to Mr Van Rullen, Mr Christie who described it as a surprise, and Ms McIlrath.
358I am not persuaded that the point at which Mr Howes attended the Sheppard table and began singing was the point at which the staff should or could have reasonably intervened. Mr Howes was at the Sheppard table for 31 seconds. It is not possible to tell if he was singing the whole time. There was no evidence about the volume Mr Howes was singing or whether it would have been sufficient to attract the attention of bar staff.
359I am not persuaded that a person attending another table and singing is something that should prompt bar staff to either attend the table or call out from behind the bar. It might be something that would alert a reasonable staff member to the need for close monitoring, if indeed the staff member heard the singing.
360What transpired was that Mr Howes quickly returned to his own table. Mr Sheppard thought Mr Howes had sworn at him but his memory is unreliable about this. Mr Van Rullen did not recall that anyone other than he had sworn at Mr Sheppard. Mr Howes’ demeanour, to the extent that it can be determined from the West CCTV, appears, by his little side-step, to be sheepish rather than aggressive.
361The fact that neither Ms McIlrath nor Mr Christie identified Mr Howes’ action in singing to the table as the catalyst for the assault, supports a conclusion that the situation did not immediately escalate at that point, notwithstanding that Mr Sheppard felt Mr Howes’ conduct was inappropriate.
362Mr Van Rullen then called across the table to Ms McIlrath. Potentially the volume of his voice at that point was sufficient to attract the attention of staff, depending on where they were located in the Hotel, but I cannot be certain of this.
363However it was not until Mr Van Rullen spoke to Mr Sheppard that I consider bar staff could have been aware that a situation was developing that might require intervention. On the balance of probabilities this occurred at about 22.08.02.
364The assault occurred at 22.08.20. At best there were 18 seconds in which a staff member might potentially have intervened. On Mr Sit’s evidence this would have been just enough time for a staff member to come from behind the bar, and to reach the Van Rullen table. Looking at the manner in which Mr Sheppard approached the Van Rullen table I do not think a reasonable staff member should have anticipated that Mr Sheppard was about to assault Mr Van Rullen so as to require a staff member to yell out something like “hey stop”. I accept Mr Sit’s evidence that yelling out from the bar can inflame a volatile situation.
365I do not consider a reasonable staff member could have identified that Mr Sheppard’s behaviour was about to escalate dramatically so as to require intervention.
366Mr Sheppard’s approach towards the Van Rullen table might have been sufficient for a staff member to consider moving over to the tables to more closely assess the situation, or alternatively to have carefully observed from the bar with the option to call out if the situation did deteriorate.
367However to find that any such intervention should have happened I would have to be satisfied that a reasonable staff member should have heard and observed the interaction between the tables from 22.08.02.
368I would only be satisfied that the staff member reasonably should have observed the interaction from 22.08.02 if I was satisfied that, in the context of the night, the staff member should have been keeping a particularly careful eye and been closely monitoring the table. That is, I would have to be satisfied that there was sufficient evidence of intoxication to warrant more careful and direct observations than the thirteen incidental occasions that bar staff interacted with or near the Sheppard table, and the interactions staff had with Mr Sheppard, Mr Christie and Ms McIlrath at the bar.
369I am not so satisfied.
370Further, even if a staff member had observed the singing and subsequent interaction between the tables and decided to keep a careful eye on things, the escalation from Mr Sheppard moving towards Mr Van Rullen to pushing him off the chair happened so quickly and so unexpectedly that I am not satisfied that a reasonable staff member would have had time to react so as to prevent the assault, either by calling out or moving to the table.
371Mr Van Rullen has not established that the Hotel breached its duty by failing to intervene prior to the assault.
Contributory negligence
372Had I reached a different decision about the liability of the Hotel, for completeness I find that Mr Van Rullen did not contribute to his own injury by his own failure to take reasonable care for his safety.
373While calling Mr Sheppard a dickhead was unwise, I do not consider it was negligent. Just as the level of Mr Sheppard’s apparent intoxication was not apparent to trained staff at the Hotel, it was not apparent to Mr Van Rullen. I do not accept that Mr Van Rullen should have foreseen that telling someone not to be a dickhead, in all the circumstances of this case, was reasonably likely to put him in danger or to result in his being assaulted. Nor do I consider that using that sort of language, in a pub setting in all the circumstances of this case, was negligent. Robust language of that type can be expected not uncommonly in a variety of social settings, including at a pub. To find that calling someone a “dickhead” in these circumstances amounts to sufficient provocation for an assault that part of a tortfeasor’s liability is diminished would not be in keeping with community expectations and would place too high a burden on Mr Van Rullen.
Conclusion
374Mr Van Rullen was the victim of an unexpected assault that had particularly unfortunate consequences for him. Mr Sheppard was responsible for the assault. The Hotel did not breach its duty to Mr Van Rullen.
375I will hear the parties on costs and the appropriate form of orders.
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