Wormald v Schintler

[1992] QCA 311

IN THE COURT OF APPEAL

[1992] QCA 311

QUEENSLAND

Appeal No. 22 of 1992

BETWEEN:

PETER CHARLES WORMALD

(Plaintiff) Appellant

- and -

GORDON ROBERTSON

(First Defendant)

- and -

JOSEPH KARL SCHINTLER

First

(Second Defendant) Respondent

- and -

AUSSIE PUBS PTY. LIMITED

Second

(Third Defendant) Respondent

JUDGMENT OF THE COURT

THE CHIEF JUSTICE
DAVIES JA

AMBROSE J

Delivered the 23rd day September, of 1992.

The plaintiff sued the two respondents and one Robertson for damages for personal injuries he sustained as a result of an incident in the Argent Hotel in Mount Isa. In this appeal we are concerned only with the position of the two respondents, Schintler, the manager and licensee of the hotel, and Aussie Pubs Pty. Limited, the licensed owner.

The learned trial judge, after finding a number of facts in the plaintiff's favour in his claim against the two respondents, went on to find that relevant acts and omissions for which they were responsible had not been causative of the injury to the plaintiff. It may be mentioned that the responsibility of the second respondent, the hotel owner, if it was to arise at all, would have been purely vicarious.

Issues which were particularly relevant for consideration were the existence or otherwise of a common law duty of care, breach of that duty, the question whether the damage which the plaintiff suffered was a consequence of that breach and, finally, contributory negligence and volenti. The trial judge considered also the question of a statutory duty of care owed to the plaintiff and said to arise under s. 78 of The Liquor Act 1912. A statutory duty of care existed, His Honour found, but it was not sufficient to entitle the plaintiff to succeed because, as was the case with the common law duty, the breach of it had not caused the loss. In short, under both headings the plaintiff's claim failed on the issue of causation.

A statement should be made of the essential facts.
At about 11.30 p.m. on 31 July, 1987 the first

defendant struck the plaintiff in the face and head with a glass beer jug. This occurred in the course of a function in the respondents' hotel, at which a considerable number of patrons, members and guests of a football club were present.

The principal allegations made against the respondents were in effect that the first respondent, Schintler, ought, in the situation that prevailed, to have acted to exercise control, employing his own staff for that purpose. It is said that he should have imposed some discipline upon Robertson who had been causing trouble, ejecting him from the hotel if necessary either with or without the aid of police.

The trial judge found that Robertson had been misbehaving for an hour or more prior to the assault upon the plaintiff. He had jumped on tables in the lounge where the function was being held, caused breakage of glass and had been molesting other patrons there present. Two particular complaints had, as His Honour found, been conveyed to Schintler arising out of this behaviour. These complaints had been made in the period of some thirty minutes prior to Robertson's attack on the plaintiff but Schintler took no action.

Just before the assault occurred a female friend of the plaintiff was walking towards the plaintiff to talk to him when she was grabbed by Robertson. This caused the plaintiff, who was seated some little distance away, to call out "Enough is enough, Robbo, you have been carrying on all night". After this remark, Robertson looked away but the plaintiff rose and went over to remonstrate with him and tapped him on the shoulder to attract his attention. The plaintiff got no further than this because Robertson then swung round and deliberately smashed the glass jug into the plaintiff. The judge found that the plaintiff's "intention was to speak to Robertson with a view to having him cease or modify his course of conduct". The plaintiff's precise intention which was subjective and unannounced was a matter upon which the plaintiff was cross-examined. The judge found that the intention could have gone so far as to take steps to remove Robertson or to have him removed from the premises.

In considering the plaintiff's claim against the respondents, the trial judge found that the test of proximity had been satisfied having in mind that the plaintiff was an attendee whose presence was accepted at licensed premises controlled by the defendants. His Honour further found that the respondents owed the plaintiff a duty of care to act reasonably to prevent damage to him while he was present in that situation. In view of Robertson's behaviour and the circumstances prevailing at the hotel as described in the evidence and found by His Honour, it is easy to conclude that as a natural and obviously foreseeable consequence of Robertson's continuing disruptive and annoying behaviour, some patron would intervene if the licensee did not himself act to quell the offensive conduct.

The trial judge has found this in the plaintiff's favour and he has found in addition that the respondents failed to take reasonable steps to prevent trouble from occurring. The finding was that reasonable steps by way of intervention could have included cautioning Robertson, directing him to desist, giving closer supervision to his conduct and that of other patrons, mustering more staff to deal with the situation, summoning police and perhaps ejecting him.

The judge made this precise finding in respect of Robertson's behaviour and it is justified by the evidence:

"It was very obvious that Robertson would become, merely with the passing of time and his unchecked or unconstrained habits and conduct, the source of some injury or damage to (some) person in or about the function". The judge accepted the evidence of two of the witnesses, Hardy and McDonald, there present who, having assessed the situation, expressly warned Schintler that Robertson was a source of trouble.

The judge then considered a further issue which was debated before him, that is, whether the licensee's failures were a cause of the injury and damage which the plaintiff suffered. In deciding this question the judge noticed but did not exclusively rely upon the "but for" test of causation. He stated, correctly enough, that a conclusion of fact was called for from him upon this question (cf. Bennett v. Minister of Community Welfare (1992) 66 A.L.J.R. 550 at 551 2nd Col. B per Mason C.J., Deane and Toohey JJ. and March v. E. & M.H. Stramare Pty. Ltd. (1991) 171 C.L.R. 506). He found that the negligence of the respondents and the breach of statutory duty by them which he also found had not been shown to have been a cause of the damage which the plaintiff suffered. His reason for coming to this conclusion notwithstanding his other findings appears to have been his decision that there were two "intervening" acts which had occurred. The first was the plaintiff's action in approaching Robertson and the second was Robertson's action in striking the plaintiff with the jug.

This conclusion might seem surprising in view of the primary findings made by the judge. He had found that a situation existed, the further implications of which it might be thought were not difficult to assess.

In effect, a "powder keg" situation existed and trouble should reasonably have been anticipated. No significant new factor intruded to distort the operation of predictable causes in the function room on that night. The plaintiff's action should not have been viewed as an external factor placing a different complexion upon the pattern of behaviour at the hotel which the licensee was negligently accepting and taking no steps to control. The plaintiff's approach to Robertson was not a supervening cause in any relevant sense.

The plaintiff was simply one of a crowd of patrons present, one or more of whom might reasonably and predictably have acted to remonstrate with Robertson over his behaviour in just such a manner as the plaintiff did or in some manner like it. The plaintiff's tap on Robertson's shoulder was simply to attract Robertson's attention and it could not be suggested that it was beyond the bounds of what was called for in the circumstances existing. Indeed, the finding of His Honour was that the form of the plaintiff's intervention did not exceed "conservative" bounds. The plaintiff's internal thought processes, including his indecision as to what his next move might precisely be if Robertson did not comply with reasonable requests was not causative of what followed.

The exact form of Robertson's aggression might not have been predictable but the real likelihood that because of his highly provocative conduct some disturbance or violence might be the outcome and that one or other of the patrons might be injured should have been regarded as reasonably apparent.

Giving all appropriate weight to the trial judge's findings, this Court should interfere when it is of the view that a finding is incorrect. In drawing the conclusion which he did from the primary facts found, the judge below enjoyed no significant advantage in terms of seeing and hearing the witnesses (cf. Dawson v. Westpac Banking Corporation (1991) 66 A.L.J.R. 94 at 99 2nd Col. B and Warren v. Coombes (1979) 142 C.L.R. 531). Here the primary findings are so clear and, so far as they go, so fully support the plaintiff's case that the further step on the issue of causation is clearly indicated and there is no difficulty in taking it. It should be held that the respondents' negligence caused, that is, was a cause of the plaintiff's loss. That finding entitles the plaintiff to succeed.

It is not necessary to decide whether there also occurred a breach of statutory duty which, apart from the question of causation, the judge found in the plaintiff's favour. No more need be said other than that the case Chordas v. Bryant (Wellington) Pty. Ltd. 20 F.C.R. 91 relied upon by the respondents to deny the existence of a duty is distinguishable.

The judge below indicated that had it been necessary for him to deal with the point he would not have found volenti against the plaintiff and also that he would have declined to find contributory negligence. There is no basis for dissenting from these conclusions, although it may be remarked in passing that the provisional conclusion which the judge indicated on the issue of contributory negligence does not fit easily with his finding on causation. The lack of contribution which the plaintiff's behaviour and actions made to the damage suffered makes it harder to view them as a factor disturbing the pattern of causation. However this may be, our attention was directed to the evidence which was before His Honour and an examination of it shows that apart from his finding on causation which cannot be accepted, there was ample evidence to support his other conclusions, including the provisional one that there was no contributory negligence.

The appeal should be allowed. The amount of damage which the plaintiff suffered has been assessed and the judgment entered below should be set aside and in lieu there should be judgment for the plaintiff against the respondents for $23,721.00. The respondents should be ordered to pay the appellant his taxed costs both of the proceedings below and of the appeal.