Yakou v Jo-Yo Nominees Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S ECI 2021 02848

BETWEEN:

EWAN YAKOU	Plaintiff
and
JAMAL YOUNAN	First Defendant
and
JO-YO NOMINEES PTY LTD (ACN 154 299 813)	Second Defendant
and
GENESIS INTERNATIONAL (AUST) PTY LTD (ACN 130 479 104)	Third Defendant

---

JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATE OF HEARING:	22, 23, 24, 25, 28, 29 October and 17 December 2024
DATE OF JUDGMENT:	28 February 2025
CASE MAY BE CITED AS:	Yakou v Jo-Yo Nominees Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2025] VSC 58

---

PERSONAL INJURIES – Plaintiff and two friends attended a ticketed concert held in the ‘Oasis room’ of a function centre in Somerton – Second defendant occupier – Third defendant landlord – Retention of security guards for the concert – Dispute over ‘corkage’ charges – One or both of the friends assaulted at least the first defendant and both were ejected from the foyer of the ‘Oasis room’ – Plaintiff began to drive his friends from the premises – Plaintiff’s friends alighted from the vehicle and re-entered the foyer precipitating a major brawl – Plaintiff followed his friends into the foyer – Circumstances of brawl – During the brawl the plaintiff was stabbed twice by the first defendant using a large kitchen knife – Trial on liability against second and third defendants – Assessment of the reliability of witnesses – New and ‘scattergun’ contentions of fact and liability – Times and aspects of the circumstances of the ‘corkage’ dispute and brawl – Video footage taken at different points and from different perspectives – Whether plaintiff participated in the fighting – Various findings of fact made – Duty of care – Ultimate arguments as to breach of duty – Whether written security policies and procedures – Whether absence of written security policies and procedures was a ‘necessary condition of the occurrence of the harm’ – Responsibility for the foyer door – Whether foyer door ‘broken’ or ‘not functioning correctly’ – Whether foyer door locked, unsupervised and/or insufficiently ‘stationed’ – Formula for the calculation of numbers of security guards – Whether plaintiff engaged in ‘illegal activity’ – Remnant liability arguments – No causal breach of duty by either defendant – Whether the risk of harm was an ‘obvious risk’ – Whether harm suffered by plaintiff as a result of the ‘materialisation of an inherent risk’ – Contributory negligence – Pleaded defences unnecessary finally to determine – Wrongs Act 1958 (Vic) ss 14B, 14G, 51, 53, 54 and 55 – Raciti v Wadren Pty Ltd [2006] VSCA 132, Lafranchi v Transport Accident Commission (2006) 14 VR 359 and Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 – Proceeding against the second and third defendants dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	ADB Ingram KC with P Haddad	Bowman & Knox Lawyers
For the First Defendant	S Bailey and A Tate (on only 22 October 2024)	Kauthen Legal
For the Second Defendant	RL Kaye KC with M Cameron	Moray & Agnew Lawyers
For the Third Defendant	RL Kaye KC with M Cameron	Moray & Agnew Lawyers

HIS HONOUR:

A Introduction

The plaintiff was born in Iraq on 5 April 1990. He and his family are of the Assyrian Christian Orthodox faith.

The family fled to Jordan and resided there for six years. In 2003, they arrived in Australia as refugees. The plaintiff was then 13 years of age.

Shortly after arriving in Australia, the plaintiff’s father had a fall which left him disabled. The plaintiff gave evidence that, for many years, he has acted as his father’s carer. The plaintiff’s father was said to be 80 years of age.[1]
[1]Transcript (‘T’) 75.

The plaintiff gave evidence that he was fit and active in his youth. He played in a soccer team with the first defendant, Jamal Younan (‘Jamal’), and, throughout his evidence, sought to emphasise that they ‘never had problems’.[2]
[2]See, eg, T76.

The plaintiff completed schooling to year 11. He said that he ‘didn’t think the school was a thing for me’.[3] After school, he had periods of employment in security work, picking and packing, and truck driving.[4]
[3]Ibid.
[4]T68, 76.

The plaintiff has a significant history of criminal offending, particularly between 2009 and about 2015.[5] He became involved with ‘criminal gangs’, did ‘stupid stuff’ and used the drug ‘ice’.[6]
[5]Exhibit D5.
[6]T76.

In that general connection, the plaintiff served a 12-month sentence of imprisonment at Fulham Correctional Centre in Sale and also spent about six months at the Melbourne Remand Centre. He gave evidence that, during the latter period, he received drug rehabilitation counselling and became ‘ice free’.[7]
[7]T76-7, 214.

The plaintiff met his now wife in 2015 and they married in 2023.[8]
[8]T74, 77-8.

On the evening of 6 December 2019, the plaintiff attended a concert by a Lebanese singer held in the ‘Oasis room’ of the La Mirage Reception and Convention Centre, a function centre in Somerton. The function centre seems to have had several rooms for entertainment, including the ‘Oasis room’.

The plaintiff had attended the function centre previously and said that he knew ‘most of the staff’, including the manager, Sami Younan (‘Sami’), the ‘head of security’, Naje Koru (‘Naje’), and ‘the other security guy’, Floran Hanna (‘Floran’).[9]
[9]T79-81.

The second defendant was the tenant and occupier of the function centre.[10] It also held the liquor licence.
[10]Amended defence of the second defendant dated 18 October 2024, [4(a)(i)-(ii)].

The third defendant was the owner of the function centre.[11] The third defendant denied that it employed or engaged any ‘servants, agents or representatives’ at the function centre.[12]
[11]Amended defence of the third defendant, [4(a)].
[12]Ibid [4(b)].

The plaintiff attended the concert in the company of David Elley (‘Elley’) and Adaay Kakoz (‘Kakoz’), who were then his friends.[13]
[13]T83.

At trial, there was a degree of dispute concerning the events on the night. Consequently, without indicating that any of the following facts and circumstances should be considered to have been finally found, it is presently sufficient to state that –

(a) the concert took place in the ‘Oasis room’;

(b) several hundred people attended the concert, which was a ticketed and seated event;

(c) guests entered via the foyer to the ‘Oasis room’;

(d) on entry, among other things, guests were scanned by security guards using a wand;

(e) Sami attended the concert, as did Jamal;[14]
[14]The plaintiff pleaded that, in effect, Jamal was an employee of the second defendant in that, on the night, its ‘acts and/or omissions’ were ‘undertaken’ by, among others, Jamal: Court Book (‘CB’) 4 [8]. That allegation was denied by the second defendant, was not discernibly pursued by the plaintiff at trial and did not feature in the plaintiff’s closing submissions. Sami gave evidence, which I accept, that Jamal was not an employee of the second defendant: T500.

(f) Sami’s son, Leonardo Younan (‘Leo’), said that he was the floor manager on the night;[15]
[15]T583. The plaintiff contended that Leo’s role on the night was in dispute and that ‘instructions and directions on the night’ were, in fact, provided by Leo’s father, Sami: Plaintiff’s outline of closing submissions dated 12 November 2024 (‘plaintiff’s outline of closing submissions’) [14], [31].

(g) hospitality and other staff seem to have been employed on the night by the second defendant;

(h) the concert ended at about 1am on 7 December 2019;

(i) prior to 1am, 16 security guards were in attendance, 12 of whom were provided by the promoter;

(j) the other four security guards were Naje, Floran, Sabah Younan (‘Sabah’) and Raad Hanna (‘Raad’);

(k) at 1:00am, Naje signed off and, at another point, the 12 crowd controllers provided by the promoter departed,[16] leaving three security guards on duty thereafter – Floran, Sabah and Raad;[17]
[16]In closing argument, the plaintiff came to contend that there were ‘serious question marks’ concerning ‘the availability of security’ on the night, particularly whether the 12 security guards provided by the promoter were available at the time of what came to be referred to as the ‘corkage dispute’ and the subsequent ‘brawl’: plaintiff’s outline of closing submissions (n 15) [21], [25]. That said, the plaintiff also contended that there were ‘just three security guards on duty’ at the time of the Corkage dispute and the Brawl: [36].
[17]Albeit that Naje signed off at 1am, video footage showed him to have been present at the premises at the time of the ‘corkage dispute’ and in the early stages of the ‘brawl’.

(l) a disagreement arose between at least Sami, on the one hand, and at least Elley and Kakoz, on the other, concerning the payment of ‘corkage charges’ (‘Corkage dispute’). The Corkage dispute commenced as a discussion held on the forecourt outside the door to the foyer of the ‘Oasis room’ and later moved inside the foyer where it escalated and Elley and/or Kakoz struck Jamal.[18] Elley and Kakoz were then ejected from the foyer onto the forecourt;
[18]The plaintiff ultimately submitted that Jamal was assaulted by Elley and Kakoz: plaintiff’s outline of closing submissions (n 15) [37]. At trial, the escalated phase of the Corkage dispute was frequently referred to as the ‘first fight’.

(m) shortly thereafter, Elley and Kakoz got into a vehicle driven by the plaintiff, who commenced to drive away. At about the point at which the vehicle reached the gate at the exit of the car park of the function centre, Elley and/or Kakoz instructed the plaintiff to stop the car, and Elley and Kakoz got out and returned to the foyer on foot;

(n) approximately 7½ minutes elapsed between Elley and Kakoz being ejected from the foyer and then subsequently re-entering;[19]
[19]Plaintiff’s outline of closing submissions (n 15) [19].

(o) the plaintiff parked the vehicle in the car park and got out, at which point he could hear screams and ran into the foyer about 18 seconds after Elley and Kakoz;

(p) during a period of a bit more than a minute, a very violent brawl unfolded (‘Brawl’);

(q) for his part, the plaintiff was present during the Brawl for an initial period of about 48 seconds before he exited the foyer onto the forecourt, and then re-entered the Brawl for a subsequent period of 10 or 11 seconds;

(r) during the Brawl, Jamal used a very large kitchen knife to stab, in no particular order, Elley, the plaintiff and Kakoz; and

(s) the plaintiff suffered injuries to his abdomen and left wrist, and was later hospitalised.

Parts of the Brawl were captured on three videos, seemingly taken using different mobile phones. In that regard –

(a) two videos were recorded from inside the foyer – during the trial, those videos were referred to as the ‘one second video’ (‘One second video’)[20] and the ‘47 second video’ (’47 second video’) respectively;[21] and

(b) a third video was taken looking across the forecourt and through the glass front door and associated windows into the foyer – during the trial, that video was referred to as the ‘54 second video’ (’54 second video’).[22]

[20]Exhibit D3 (‘One second video’).

[21]Exhibit D4 (’47 second video’).

[22]Exhibit D6 (’54 second video’).

In addition, CCTV footage of 17 minutes and 14 seconds in length was taken from a camera positioned roughly above the foyer door and looking outwards across the forecourt to the car park. During the trial, the CCTV footage was referred to as ‘camera 16’ (‘Camera 16 footage’).[23]
[23]Exhibit D2 (‘Camera 16 footage’).

The Camera 16 footage does not show the foyer door directly. For the most part, the car park is in darkness, although, at various points, vehicles can be seen moving about.

The Camera 16 footage commences prior to the Corkage dispute and extends to a point after the Brawl. Among other things, the Camera 16 footage shows –

(a) Elley and Kakoz in discussion with Sami during the initial phase of the Corkage dispute and prior to the escalation of that dispute (which occurred inside the foyer and therefore out of the view of the Camera 16 footage);

(b) Elley and Kakoz each being ejected by security guards onto the forecourt after the Corkage dispute;

(c) the plaintiff departing the foyer and leaving, generally speaking, in the company of Elley and Kakoz;

(d) Elley and Kakoz later returning to the forecourt where they are approached by Sabah and another man;

(e) Elley and Kakoz getting past the men, including Sabah, and, by inference, re-entering the foyer;

(f) a matter of seconds thereafter, the plaintiff sprinting from the car park across the forecourt towards the foyer door and, by inference, re-entering the foyer; and

(g) subsequently, at different points, all three men re-emerging onto the forecourt, injured, and ultimately departing into the car park after Kakoz has retrieved a large metal stake and used it to smash at the glass of the foyer door and/or associated windows.

The three mobile phone videos are not timestamped and it was common ground that neither of the two different forms of timing shown in the Camera 16 footage accurately reflects the time at which the various events occurred.[24] It follows that the precise time at which the various events occurred cannot be identified by direct reference to the videos and Camera 16 footage.
[24]For the most part, during the trial, reference tended to be made to the time elapsed, commencing at 0.00, of the Camera 16 footage (n 23) and I will refer to those times in these reasons. That said, the plaintiff’s outline of closing submissions dated 12 November 2024 refers, at various points, to the (different) times appearing at the top right hand corner of the Camera 16 footage.

The incident in which the plaintiff was stabbed by Jamal is shown during the
47 second video. That and all other aspects of the violence shown in the various videos and Camera 16 footage is shocking. Among other things, there is a considerable amount of blood.

At trial, the plaintiff claimed against the second and third defendants in negligence and breach of duty pursuant to s 14B of the Wrongs Act 1958 (Vic) (‘Wrongs Act’).[25]
[25]Cf plaintiff’s outline of closing submissions (n 15) [1]-[3].

Among various notions that featured in the plaintiff’s claims and evidence, the written outline of closing submissions filed and served on his behalf (‘plaintiff’s outline of closing submissions’) submitted as follows –

… the Plaintiff’s actions during the 47 second video are consistent with his evidence that at no point during the second fight [ie, the Brawl] was he involved in fighting but rather was attempting to calm the situation, including to convince JY [Jamal] to put down the knife.[26]

[26]Plaintiff’s outline of closing submissions (n 15) [58]. See, in opening at T58: ‘… our case will be that this was an unprovoked attack by Jamal Younan using a large kitchen knife against a person who was posing no threat to them at all and indeed, was … trying to perform the role of peace maker in this dispute that had broken out.’ See also T68, and, in final address, T735-7.

In short, the plaintiff sought to portray himself as the innocent victim of a stabbing by Jamal that, he contended, would have been avoided but for the claimed negligence and/or breach of duty of the second and/or third defendants.

B The proceedings

On 10 August 2021, the plaintiff commenced proceedings against –

(a) Jamal, as first defendant;

(b) Jo-Yo Nominees Pty Ltd trading as La Mirage Reception and Convention Centre, as second defendant; and

(c) Genesis International (Aust) Pty Ltd, as third defendant.[27]

[27]CB 1-11.

In early 2022, Elley and Kakoz each commenced proceedings substantially similar to those commenced by the plaintiff.[28]
[28]Elley commenced proceeding S ECI 2022 00621 on 24 February 2022, CB 40-51; Kakoz commenced proceeding S ECI 2022 00743 on 9 March 2022, CB 88-99.

On 21 June 2023, Jamal commenced a counterclaim against the plaintiff and second defendant.

On 7 February 2024, the second and third defendants each commenced a contribution claim against Jamal.

On 15 October 2024, a combined trial of all three proceedings – limited to the issue of liability – was ordered to be heard as a cause.[29]
[29]Order of Keogh J dated 15 October 2024.

Shortly prior to the commencement of the trial, orders were made by consent –

(a) dismissing the claims made as between the plaintiff and Jamal; and

(b) dismissing the claims by and against Elley and Kakoz respectively.

Consequently, the trial commenced on 22 October 2024 initially as between –

(a) the plaintiff and the second and third defendants; and

(b) Jamal and the second and third defendants, including the contribution proceedings.

At the commencement of the trial, among other things, the second and third defendants sought leave to amend their defences.

In particular respects, those applications were opposed by the plaintiff and Jamal. A significant basis for the opposition was said to be –

… the suggestion on effectively the first day of this trial, that there’s another potential party, Mr Koru [ie, Naje], who’s responsible for the provision of security at this La Mirage Reception Centre on the night in question.[30]

[30]T14.

The second and third defendants were each granted leave to amend for reasons given orally, including that ‘the allegations in respect of security … [were] not truly fresh’.

The plaintiff and Jamal then applied for an adjournment of the trial, essentially with reference to the basis rejected in the course of determining the earlier applications for leave to amend. The adjournment application was rejected for reasons also delivered orally.

Thereafter, senior counsel for the plaintiff applied for leave to short serve subpoenas to give evidence addressed to Naje and Floran respectively. That application was not opposed and leave was granted.[31]
[31]T47.

After the lunch adjournment on the first day of the trial, I was informed that the proceedings between Jamal and the second and third defendants, including the contribution proceedings brought against Jamal by the second and third defendants, had resolved. By consent, an order was made dismissing those proceedings.[32]
[32]T51. The order was later broadened to embrace the issue of a further subpoena to Detective Acting Sergeant Dean Hartwell: T51-2.

It follows that from that point, and prior to the commencement of any evidence, the only claims that came to be pursued at trial were those made by the plaintiff against the second and third defendants. For simplicity, where reference is subsequently made to ‘the defendants’, that should be taken to refer to the second and third defendants.

The plaintiff’s pleading casts an exceptionally wide net. Among other things, as against the second defendant, the particulars of ‘negligence and/or breach of duty’ include –

(a)Failure to take any, or adequate steps, to protect the Plaintiff from assault and/or stabbing at the premises by Jamal Younan.
…
(f)Enabling and/or allowing David Elley and/or Adaay Kakoz to re-enter the premises after being evicted.
(g)Failing to provide front doors that could be locked and/or remain locked to keep evicted patrons from re-entering the premises.

…
(i)Failing to have an adequate number of security guards in the circumstances;

…

(l)Failing to call the police after the Second Defendant had evicted David Elley and/or Adaay Kakoz for the first time on the 7^th of December 2019.

…

(p)Failure to employ appropriately trained and/or the appropriate number of crowd controllers at the premises.

…

(r)Failed to institute any, or any adequate, system of ejecting patrons from the premises.
(s)Failing to undertake a hazard and risk identification and/or security risk assessment for the event on the 6^th of December 2019.
(t)Failing to have any or any adequate security plan and/or operating procedure.
(u)Failing to have any or any adequate instructions, protocols, or system of work for staff in the event of a violent or potentially violent incident.

…

(cc)Failing to ensure the premises had proper and appropriate security on 6 December 2019 given that the Second and/or Third Defendant knew or ought to have known of the potential for intoxicated and/or aggressive patrons.

…

Most of the above particulars were also relied upon against the third defendant.

In that context –

(a) during the trial, the plaintiff gave evidence and called Naje and Floran (each in answer to subpoena) as well as Dr Tony Zalewski, an expert in security systems;

(b) for their part, the defendants called Sami, Leo and Peter Smith, also an expert in security systems; and

(c) without seeking to be in any way critical of counsel for the plaintiff, the emphasis in the plaintiff’s liability case tended to shift around and little, if any, specific mention was made of the pleaded particulars.

In respect of the latter point –

(a) during the evidence of Naje and Floran, it seemed that it would come to be submitted that each was an employee of the second defendant – however, no such submission was ultimately advanced;

(b) much of the trial was conducted on the basis that the concert finished at about 1am, the Corkage dispute occurred shortly after 1:30am and the Brawl occurred at about 1:40 or 1:45am.[33] However, in the plaintiff’s outline of closing submissions, no precise time was given for the conclusion of the concert, and the plaintiff contended that the ‘best evidence’ was that the Corkage dispute occurred ‘around 1:15 to 1:20 am’ and that the Brawl commenced ‘between around 1:20 and 1:25 am’;[34]
[33]See, eg, the evidence given by Dr Zalewski at T420-1 and the cross-examination of Sami at T537-8 and T553-4.
[34]Plaintiff’s outline of closing submissions (n 15) [17], [20].

(c) that said, the precise submission sought to be advanced was, perhaps, a little obscure, as it was also said that the Corkage dispute occurred at ‘around 1:15 pm [sic: am]’,[35] there was ‘approximately 7 minutes and 34 seconds between the two fights’,[36] and that the plaintiff was stabbed ‘at approximately 1:20 am’;[37]
[35]Ibid [12].
[36]Ibid [19].
[37]Ibid [57].

(d) the plaintiff came to contend that the ‘availability of security’ at the time of the Corkage dispute and Brawl was a ‘significant issue’,[38] and, in oral closing address, flirted with a rather undeveloped submission to the effect that the
12 security guards provided by the promoter could have been present and available if required.[39] However, no such suggestion had been relevantly pursued in evidence[40] and, in any event, other parts of the plaintiff’s outline of closing submissions seemed to accept that no such security personnel appear in the Camera 16 footage and that, at the relevant times, ‘there were just three security guards on duty’;[41]
[38]Ibid [21].
[39]See T741.
[40]Including, eg, during the evidence-in-chief of Dr Zalewski: see T420-1 ‘… everyone signed off either at 1am, which is one person, and all the rest signed off at 1.30’. See also T431-2, 435, 437.
[41]Plaintiff’s outline of closing submissions (n 15) [22], [36].

(e) perhaps in respect of the same issue, in closing argument, the plaintiff contended that the Corkage dispute put the defendants ‘on notice’ of a risk of violence such that ‘greater numbers’ of security personnel ought to have been retained.[42] However, as I have indicated, during the evidence there had been essentially no relevant or detailed investigation of the question whether further, and if so how many, such personnel could have been available to be retained at the relevant times;
[42]T734, 741.

(f) separately, in the plaintiff’s outline of closing submissions, he appeared to contend that the defendants had negligently failed to ‘ensure that Kakoz and Elley’ had been ‘entirely evicted’ from the ‘premises’ after the Corkage dispute.[43] It is not entirely clear what was there sought to be suggested – although the submission might have been based in evidence given by the plaintiff that Elley and Kakoz had alighted from the vehicle ‘just before we got to the main gate of the entrance of the car park’.[44] However, any such a submission would give a very strained meaning to the expression ‘premises’ in circumstances in which –
[43]I say ‘appeared’ because the only point at which the submission is advanced in those terms is in the section of the outline addressing the defendants’ defences: plaintiff’s outline of closing submissions (n 15) [89(c)].
[44]T83-4.

(i) the plaintiff’s pleading defined ‘the premises’ as being ‘the La Mirage Reception and Convention Centre at 210 Hume Highway, Somerton’[45] – which, without further specification, would ordinarily be understood to direct attention to the function centre itself, as opposed to its car park;
[45]CB 3-4 [4(a)].

(ii) in that connection, the plaintiff was, of course, stabbed inside the function centre and none of the particulars of ‘negligence and/or breach of duty’ referred to or directed specific attention to the car park;[46]
[46]CB 5-8 [14].

(iii) consistently with that understanding of the pleading, the proceeding had implicitly been conducted on the basis that the relevant ‘premises’ were the ‘Oasis room’ and its adjacent foyer;

(iv) all of the evidence showed that Kakoz and Elley had been ‘removed forcibly’ from those premises (particularly, the foyer) after the Corkage dispute;

(v) during the trial, no evidence had been directed to establishing that any particular person could be said to have been at fault for failing to ‘ensure’ that Kakoz and Elley (and the plaintiff) had subsequently also been ‘evicted’ from the car park; and

(vi) in any event, in the circumstances, it is not obvious that there could be any material difference between Elley and Kakoz having alighted from the vehicle ‘just before’ the main gate or just after it (in the latter instance, of course, Elley and Kakoz would have been, technically, outside of the so-called ‘premises’);

(g) during the evidence, relatively little investigation was undertaken of the precise circumstances in which Elley and Kakoz (and, a matter of seconds later, the plaintiff) re-entered the foyer of the ‘Oasis room’ immediately prior to the Brawl, other than to seek to establish that they had entered via a door that was ‘broken’ or ‘not operating correctly’. In that regard, there was little or no investigation of precisely who and what security or other personnel and equipment was or was not proximate to the door at the relevant time. Nonetheless, in the plaintiff’s outline of closing submissions, and with reference to a statement made by Sami to police in the early hours of the morning after the incidents,[47] the plaintiff appeared to contend that the door had been ‘inadequately stationed by security such that the perpetrators were allowed in by a guest’.[48] However –
[47]Exhibit P13 [15].
[48]I say ‘appeared’ because the point at which the submission is advanced in those terms appears in the section of the plaintiff’s outline of closing submissions (n 15) addressing the defendants’ defences to the claim: [89(d)].

(i) that part of Sami’s statement in fact reads –

David [Elley] and Adai [Kakoz] left and we were talking like why they came. We shut the door behind them. About 5-10 minutes later they came back in a group of 4-5 people. They knocked on the door and some one opened it, one of the guests I think.[49]
[49]Exhibit P13 [15] (emphasis added).

(ii) somewhat differently, in evidence-in-chief, Sami said that Elley and Kakoz had returned and punched the glass of the door ‘forcing to get in’;[50]
[50]T521.

(iii) in cross-examination, Sami was taken to the relevant part of the statement and said –

I wasn’t sure who opened the door but for me, because on that time there is a few walking out, so maybe they left it open or it had been locked, but I’m sure the security of my (indistinct) someone else. But that door was forced to get up, and that’s why it closes manually, and the sensor won’t be open.[51]
[51]T569.

(iv) it will be apparent that that Sami’s answer was, in part, directed to the suggestion – made a short time earlier, and denied – that the door was ‘broken’;[52]
[52]T562.

(v) immediately after the answer to which I have referred, the cross-examiner further pursued the contention that ‘the door wasn’t operating correctly’;[53]
[53]T569.

(vi) it follows that there was no precise investigation during that or any other part of Sami’s evidence (or, seemingly, that of any other witness called), of who and what was on the other side of the foyer door, and whether, in the circumstances, the re-entry of Elley and Kakoz could realistically have been facilitated by a guest and also the ‘fault’ of any security guard ‘stationed’ or not ‘stationed’ at the door;

(vii) in that general connection, in oral evidence given the previous sitting day, Dr Zalewski had been directed to the proposition that, among other ‘factors’, there had been a ‘non-operating door’, and in respect of the ‘appropriateness of the measures’ taken, said –

… it’s indicative of a lack of planning and preparation. And, you know, as I’ve said earlier, good systems of security are all about being proactive, risk avoidance, rather than reactive. And certainly if there’d been an adequate risk assessment, if there’d been adequate protocols developed based upon the risk assessment, all of these things, such as checking doors to make sure they’re working, allocating who would go to that door and control the door so they knew how to operate it, checking of CCTV cameras to ensure they’re working, ensuring that adequate signage is around, ensuring adequate lighting was available outside the premises as well, allocating who might be monitoring the car park as opposed to the forecourt as opposed to the foyer, just within the door where the serious assault occurred. So all of these things should be part of the planning and setting up of the system.[54]
[54]T416-17.

(viii) shortly thereafter, Dr Zalewski elaborated in respect of the circumstances on the night and said –

… even though it might be justified to reduce 16 [security guards] down to whatever number in the circumstances, the realities are three would never meet the need because, effectively, you’ve got to control the door and control people who were, you know, confrontationist, and you don’t know who else is involved. So three could never be enough.
…
I don’t necessarily concur that it should be 16, you know, the four in-house and the other 12. But certainly three would not have been enough to control just that small area that’s under the CCTV vision that we’ve all seen. So, you know, I would think – and I mean, I’d be guessing, but I would guess it would be something north of six or seven until the last person leaves.[55]
[55]T419-20. See also later in re-examination at T467, 469.

(ix)in that evidence, of course, Dr Zalewski was not asked to and did not comment upon any proposition that Elley and Kakoz had been let into the foyer by a guest, and whether the ‘stationing’ of security guards at the door at the time at which Elley and Kakoz re-entered the foyer might consequently be said to have been in some way ‘inadequate’; and

(x) further, Dr Zalewski was not asked to and did not give any specific evidence concerning precisely how many security guards, in his opinion, should reasonably have been ‘stationed’ at the door at the time at which Elley and Kakoz re-entered, and whether that number of guards would have been sufficient to restrain the ‘guest’, or Elley and Kakoz, in circumstances in which Elley, in particular, seems to have been armed with an extendable baton and it was broadly common ground that any and all security guards would have been unarmed;

(h) similarly, in the plaintiff’s outline of closing submissions, he contended that the ‘supervision’ of the three guards on duty had been ‘less than adequate’.[56] However –
[56]Plaintiff’s outline of closing submissions (n 15) [36].

(i) during the evidence, there was nothing in the way of specific criticism of the actions of any of the three security guards on duty at the time[57] (including Floran, who, of course, was called as a witness by the plaintiff and had given evidence-in-chief that ‘we’ – meaning the security guards – had tried ‘as much as we can … to not let people in because of that first fight’ and that they had also tried to stop the fight ‘but we couldn’t’[58]); and
[57]I note that this point was made repeatedly by senior counsel for the defendants in closing address (T690, 704, 708, 728) and that senior counsel for the plaintiff did not subsequently submit to the contrary.
[58]T323.

(ii) neither in the plaintiff’s outline of closing submissions nor elsewhere did the plaintiff identify, with any precision, the substance of the claimed inadequacy (or inadequacies) of any of the guards; and

(i) finally, a contention that the defendants had negligently failed to call police after the Corkage dispute provoked investigations during oral evidence, including during the evidence of Dr Zalewski and Mr Smith, but that contention was ultimately not developed or perhaps even pursued in any of the plaintiff’s closing submissions.[59]

[59]The plaintiff’s outline of closing submissions (n 15) refers to the receipt by police of a call at 1:47am, but it is not there said that either defendant failed to call police after the Corkage dispute: [25]. Later, in respect of duty and breach, the plaintiff appears to direct attention to the ‘primary criticisms’ made by Dr Zalewski: [78]. The identified criticisms do not include any contention in respect of failing to call police, albeit that such a criticism appeared in Dr Zalewski’s first and second reports: see Exhibit P4, CB 214; Exhibit P5, CB 263. The submission was not made in closing address.

Notwithstanding the above, it was clear enough in the plaintiff’s outline of closing submissions, as well as the subsequent closing address of the plaintiff’s senior counsel,[60] that –
[60]T731-44.

(a) broadly speaking, submissions were being advanced –

(iii) as to the credit and reliability of various witnesses;

(iv) that certain factual findings should be made; and

(v) that the liability of one or both defendants should follow; and

(b) upon such findings, the defences relied upon by the defendants should also fail.

For their part, the defendants took issue with various factual contentions pressed by the plaintiff and also took aim at the credibility and reliability of the plaintiff and his witnesses, including Dr Zalewski.

In that regard, in a written outline of closing submissions (‘defendants’ outline of closing submissions’), the defendants contended that –

(a) in respect of the second defendant, the risk of injury to the plaintiff in a violent confrontation was not reasonably foreseeable;[61]
[61]Second and third defendants’ outline of submissions dated 12 November 2024 (‘defendants’ outline of closing submissions’) [4]-[6].

(b) the third defendant was ‘effectively an absentee landlord’;[62]
[62]Ibid [11].

(c) in any event, there was no material breach of any duty owed;[63]
[63]Ibid [12]-[77].

(d) in particular –

(vi) it had been ‘entirely reasonable … to have three security guards … at the [p]remises after 1:30am’;[64]
[64]Ibid [20].

(vii) even if the front door of the ‘Oasis room’ had been unlocked or broken, there was no unreasonableness, as it had not been expected that Elley, Kakoz and the plaintiff would return after driving away;[65]
[65]Ibid [31].

(viii) during the Brawl, the plaintiff had been ‘throwing punches at Sami’;[66]
[66]Defendants’ outline of closing submissions (n 61) [36].

(ix)the evidence of Mr Smith should be preferred over that of Dr Zalewski;[67]
[67]Ibid [42]. See also [21]-[22].

(x) the fact that there had been no written security plan was ‘of no causal relevance’;[68]
[68]Ibid [43].

(xi)Sami and Leo had given evidence ‘in a credible and straightforward manner’;[69]
[69]Ibid [52].

(xii) by contrast, Floran was ‘not a credible witness’,[70] Naje’s answers had been ‘evasive, and frequently non-responsive’[71] and the plaintiff had not been ‘a credible witness’;[72] and
[70]Ibid [28].
[71]Ibid [53].
[72]Ibid [65]-[72].

(xiii) sections 14G(2) and 14B(4)(fb) of the Wrongs Act direct the Court to consider whether the plaintiff was engaged in an ‘ illegal activity’ and, in the present instance, the plaintiff was illegally trespassing and involved in ‘physical assault and affray’;[73]
[73]Ibid [59], [61]-[62].

(e) the ‘but-for’ test of causation was not satisfied;[74]
[74]Ibid [79]-[81]. Cf Wrongs Act 1958 (Vic) (‘Wrongs Act’) s 51.

(f) in any event, the ‘chain of causation’ was broken by the plaintiff ‘voluntarily walking towards Jamal when he was wielding the knife’;[75]
[75]Defendants’ outline of closing submissions (n 61) [88].

(g) the defence of volenti non fit injuria is modified by ss 53 and 54 of the Wrongs Act and, in the present circumstances, various ‘risk[s] of injury’ would have been obvious to a person in the position of the plaintiff;[76]

(h) section 55 of the Wrongs Act provides that a person is not liable in negligence for harm suffered by another as a result of the materialisation of an ‘inherent risk’ and, in the present instance, the ‘inherent risk of staying near someone wielding a knife’ materialised;[77] and

(i) the plaintiff had ‘freely and knowingly placed himself in a very dangerous situation’ such that a finding of contributory negligence of ‘80 to 90%, or even up to 100%’ would be appropriate in the event that the second and/or third defendants were found to be liable.[78]

[76]Ibid [90]-[95].

[77]Defendants’ outline of closing submissions (n 61) [96]-[97].

[78]Ibid [98]. Cf Wrongs Act (n 74) ss 62-3.

In oral closing address, senior counsel for the defendants addressed several submissions made in the plaintiff’s outline of closing submissions and otherwise replied to the closing oral submissions of senior counsel for the plaintiff.[79]
[79]T664-731, 744-8.

For completeness, I should note that each side advanced several more minor submissions, including –

(a) duelling contentions that the failure of the other to call identified persons to give evidence warranted the drawing of adverse inferences;[80] and

(b) a contention by the plaintiff that the defendants breached the rule in Browne v Dunn.[81]

[80]Defendants’ outline of closing submissions (n 61) [73]; T743-4.

[81]Plaintiff’s outline of closing submissions (n 15) [29]-[31].

In my view, little need be said about the further and more minor submissions as there is nothing of any real substance in any of them. Among other things –

(a) none of the identified persons seem to have been in the ‘camp’ of the relevant side;[82] and

(b) while the evidence given by Leo concerning, in general terms, a ‘shared responsibility’ for security,[83] was not put in precise detail to Naje, it was suggested to Naje that an aspect of discussions on the night had been raised with him by Sami or Leo, part of which he denied,[84] and it was nonetheless clear enough, in the relevant cross-examination of both Naje and Floran, that their evidence on the topic was not accepted by the defendants.[85] In all of the circumstances, there was no unfairness or injustice.

[82]Cf Cayford v Let Danny Do It [2021] VSC 707, [32]-[34].

[83]T603-4.

[84]T281-2.

[85]Cf Casey v Transport Accident Commission [2015] VSCA 38, [39]-[40].

C Relevant provisions

It will be evident that the plaintiff’s claims, as well as several of the defences relied upon by the defendants, are based in or affected by certain provisions of the Wrongs Act, including –

14B Liability of occupiers
…
(3)An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.
(4)Without restricting the generality of subsection (3), in determining whether the duty of care under subsection (3) has been discharged consideration shall be given to—
(a)the gravity and likelihood of the probable injury;
(b)the circumstances of the entry onto the premises;
(c)the nature of the premises;
(d)the knowledge which the occupier has or ought to have of the likelihood of persons or property being on the premises;
(e)the age of the person entering the premises;
(f)the ability of the person entering the premises to appreciate the danger;
(fa)whether the person entering the premises is intoxicated by alcohol or drugs voluntarily consumed and the level of intoxication;
(fb)whether the person entering the premises is engaged in an illegal activity;
(g)the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.

…

14G Consideration of intoxication and illegal activity
(1)This section applies to a claim for damages in respect of death or personal injury brought by a person (the plaintiff) against another person (the defendant) alleging negligence.
(2)In determining whether the plaintiff has established a breach of the duty of care owed by the defendant, the court must consider, among other things—
(a)whether the plaintiff was intoxicated by alcohol or drugs voluntarily consumed and the level of intoxication;
(b)whether the plaintiff was engaged in an illegal activity.[86]
[86]See also Wrongs Act (n 74) s 14B(4), particularly (fb).

…
51 General principles
(1)A determination that negligence caused particular harm comprises the following elements—
(a)that the negligence was a necessary condition of the occurrence of the harm (factual causation); and
(b)that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(2)In determining in an appropriate case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3)If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the negligent person had not been negligent, the matter is to be determined subjectively in the light of all relevant circumstances.
(4)For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

…
53 Meaning of obvious risk
(1)For the purposes of section 54, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(2) Obvious risks include risks that are patent or a matter of common knowledge.
(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.
(5) To remove any doubt, it is declared that a risk from a thing, including a living thing, is not an obvious risk if the risk is created because of a failure on the part of a person to properly operate, maintain, replace, prepare or care for the thing, unless the failure itself is an obvious risk.

54 Voluntary assumption of risk
(1)If, in a proceeding on a claim for damages for negligence, a defence of voluntary assumption of risk (volenti non fit injuria) is raised and the risk of harm is an obvious risk, the person who suffered harm is presumed to have been aware of the risk, unless the person proves on the balance of probabilities that the person was not aware of the risk.
(2) Subsection (1) does not apply to—
(a)a proceeding on a claim for damages relating to the provision of or the failure to provide a professional service or health service; or
(b)a proceeding on a claim for damages in respect of risks associated with work done by one person for another.

(3)Without limiting section 47, the common law continues to apply, unaffected by subsection (1), to a proceeding referred to in subsection (2).

55 No liability for materialisation of inherent risk
(1)A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.
(2)An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care.
(3)This section does not operate to exclude liability in connection with a duty to warn of a risk.

…
62 Standard of care for contributory negligence
(1)The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) For that purpose—
(a)the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and
(b)the matter is to be determined on the basis of what that person knew or ought to have known at the time.

63 Contributory negligence can defeat claim
In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated.

D Witnesses and other evidence

The plaintiff

I have earlier referred to aspects of the plaintiff’s evidence concerning his background and upbringing. Part of that evidence concerned his level of education, work history and history of criminal offending and incarceration.

In respect of the latter, in particular, the plaintiff gave evidence-in-chief that he had become involved in criminal gangs from ‘about 2013’ and was incarcerated at Sale and then on remand at Melbourne Remand Centre before becoming ‘ice free’ from ‘2014 until this day’. In that connection, he said –

… since 2014 I completely changed after I seen [a drug counsellor] and all the drug counselling and stuff, but since I met [his now wife] from 2015 … I was still … no trouble, no nothing until 2017 we got together, and then she started telling me things working together as in into the right path. And since then it’s been nothing but good, me and her.[87]

[87]T78.

The plaintiff then gave evidence concerning the care given by him to his family, as well as the family’s attendance at church ‘[e]very week’.[88]
[88]Ibid.

Later, the plaintiff gave evidence-in-chief that –

(a) he had not been involved in the Corkage dispute, as he had been in the bathroom, then saw Elley, Kakoz and Sami ‘talking’ in the foyer, following which he ‘walked straight out [of the foyer]’;[89]
[89]T82-3.

(b) he did not know that Elley and Kakoz had been escorted from the foyer;[90]
[90]T83.

(c) he had driven Elley and Kakoz away, but just before the car got to the main gate, Elley had asked him to stop, although the plaintiff ‘didn’t ask why’, and Elley and Kakoz then got out;

(d) Elley and Kakoz had ‘walked’ from the vehicle ‘normally’ and the plaintiff had not seen ‘any aggression, nothing’;[91]
[91]T84.

(e) he had parked the vehicle in the car park and got out and was ‘walking’ when he heard screaming and then ‘ran in just to see what was happening and then - so I can take the boys and leave’;[92]
[92]T97.

(f) there were people coming and going through the foyer door when he ‘went through’, and no effort had been made to ‘restrict people still entering the premises’;[93]
[93]T84.

(g) once he was inside the foyer –

… I’ve seen there was a couple of people on top of David Elley. He was on the floor. And I just managed to get there and just pull one of them off David and then that’s when, I think, Adaay [Kakoz] and Jamal started on the right-hand side and then I just tried to get in between and say like ‘stop fighting’ and I think after that, that’s when I was stabbed …[94]
[94]T97-8.

(h) he ‘did not get involved’ in any physical altercation and ‘did not lay one hand on nobody’;[95]

(i) indeed, he sought to confirm that he had tried to break up the fight that he had come across;[96] and

(j) he had been stabbed by Jamal ‘[f]or no reason whatsoever’.[97]

[95]T98-9.

[96]T107.

[97]T104-5.

In the course of his evidence-in-chief, the plaintiff was taken to parts of the 47 second video, the Camera 16 footage and the 54 second video.

It will be evident that the general import of the plaintiff’s evidence-in-chief was that –

(a) he had completely changed since 2014;

(b) he played no part in the shocking violence ignited and pursued by his then friends, Elley and Kakoz;[98]

(c) he should be understood to have played an entirely peaceful role, especially during the Brawl; and

(d) he had been stabbed for ‘no reason whatsoever’.[99]

[98]The plaintiff later gave evidence that he had stopped talking to Elley and Kakoz two or three weeks after getting out of hospital following the incident: T212.

[99]T104.

That narrative was broadly challenged in cross-examination, albeit that the plaintiff sought to adhere to it. That said –

(a) the plaintiff was taken to a history given by him to Dr Epstein in which he had suggested that he was outside the foyer with a friend having a cigarette and unaware that a fight had broken out (ie, the escalated Corkage dispute). The plaintiff acknowledged the history given, but proffered the following purported explanation –

… I was on medication at the same time, so I don’t remember sometimes what … I say and what not.[100]
[100]T138.

(b) shortly thereafter, he said –

I couldn’t remember everything. And then half of the things that I remembered was after seeing him on the footage that we just watched today.[101]
[101]Ibid.

(c) the plaintiff then agreed that he did not tell Dr Epstein about having been in the bathroom at the time of the Corkage dispute, and later said that he had not thought that it was relevant;[102]
[102]T139-40.

(d) the plaintiff confirmed that after he had been released from hospital he had watched the mobile phone videos and, perhaps, the Camera 16 footage;[103]
[103]T141-3

(e) he had not watched the Camera 16 footage with his lawyers, although a member of his legal team had told him that it showed him going into the foyer and leaving again during the period of the Corkage dispute;[104]
[104]T143.

(f) in that connection, he said that he had not remembered going to the bathroom ‘until I seen the video’. When it was suggested that he had made that part of the story up, he said –

… I’ve forgotten, maybe I’ve forgotten a lot of things, but I haven’t been lying about anything.[105]

(g) the plaintiff then suggested that he had forgotten that detail because ‘[t]here was too much going on’, although he was unable to say when he first remembered it, and later said that he had not given the detail to his solicitors because he ‘didn’t think it was relevant to say anything’;[106] and

(h) the plaintiff then confirmed that had not done ‘anything’ between leaving the bathroom and getting into the vehicle with Elley and Kakoz.[107]

[105]T143.

[106]T144.

[107]T149.

The plaintiff was then taken to parts of the Camera 16 footage corresponding with the period of the Corkage dispute.[108] In that regard –
[108]Camera 16 footage (n 23).

(a) the plaintiff is shown as likely entering the foyer at the point at which the escalated Corkage dispute must have been unfolding (5.04), and to have been inside the premises shortly prior to the ejection of Kakoz (5.32) and then Elley (5.56), before himself exiting onto the forecourt (6.21);

(b) the plaintiff is then shown to approach a group of men, including at least Elley (6.35), and to be beside Kakoz while the latter lurches back towards the foyer door and is then shepherded away (7.12);

(c) the plaintiff is then shown to be behind a group of men, including Kakoz, while the latter is moving off in the direction of the carpark (7.18);

(d) in light of the above, the plaintiff was essentially forced to acknowledge that he had not gone to the bathroom and then come out and gone straight to the car;[109]
[109]T154.

(e) that said, the plaintiff denied that, after the Corkage dispute, Floran had told him to leave;[110] and
[110]T161.

(f) the plaintiff continued to assert that he had –

(xiv) not joined ‘anyone’;

(xv) kept his ‘distance’;

(xvi) not seen any ‘physical fight’;

(xvii) thought that whatever had happened ‘wasn’t something serious’; and

(xviii) not asked Elley and Kakoz why they wanted to get out of the car and go back into the function centre.[111]

[111]T154-7, 162.

Later, the plaintiff was taken to parts of the Camera 16 footage corresponding with the period of the Brawl. In that regard –

(a) even though he acknowledged that he had parked the car close to the forecourt, the plaintiff said that he had not seen Sabah attempting to restrain Elley and Kakoz from re-entering the foyer (12.56);[112] and

(b) even though he is seen to sprint across the forecourt (13.21) a matter of seconds after Elley and Kakoz seem to have re-entered the foyer (13.03 and 13.05 respectively), and said that he had been able to hear screaming,[113] the plaintiff said that he ‘did not know there was a fight’, ‘did not know there was going to be a fight’[114] and that he had ‘walked in’ to the foyer.[115]

[112]T172.

[113]Ibid.

[114]T167-8.

[115]T173.

In that connection, I should note that –

(a) at no point in the relevant part of the Camera 16 footage is the plaintiff shown to be ‘walking’ across the forecourt;

(b) further, while he is sprinting across the forecourt the plaintiff’s shirt appears appropriately buttoned (13.23);

(c) the 54 second video[116] shows that the foyer door towards which the plaintiff was sprinting is actually two glass sliding doors with further windows above and on either side – accordingly, it is hardly likely that while the plaintiff was sprinting across the forecourt towards the foyer door, he could not see and did not know that there was already or was going to be a fight; and

(d) at that point, Elley and Kakoz were very likely immediately inside the foyer door in the midst of a violent altercation.

[116]54 second video (n 22).

In any event, in cross-examination, the plaintiff again confirmed that when he entered the foyer –

(a) he saw Elley on the floor at the entry with a ‘group of people’ on top of him; and

(b) he pulled a person off Elley which, he said, was ‘the only time I laid my hand on anybody’.[117]

[117]T173-4. See earlier, in examination-in-chief, at T97-99.

At that point, the plaintiff was shown the One second video,[118] which he had not been shown in evidence-in-chief, and which he later confirmed that he had not previously seen. The plaintiff said that he could not recall the incident shown.[119]
[118]One second video (n 20).
[119]T178. See also T184.

While obviously brief, the One second video reveals a confrontation taking place immediately inside the foyer door. Among other things –

(a) the participants, in various roles, include Sami, Leo, Kakoz, the plaintiff, Floran, Sabah, Naje and Elley;

(b) Sami is splayed on the floor underneath a round table bearing a floral arrangement a short distance inside the foyer door;

(c) Leo is standing slightly in front of Sami;

(d) the plaintiff and Kakoz are standing roughly alongside each other, about a metre or so apart and each facing Leo;

(e) the plaintiff appears to be closer to Leo than Kakoz;

(f) Sabah appears to be trying to intervene between Leo and the plaintiff;

(g) Leo appears to strike the plaintiff in the face over the outstretched arm of Sabah;

(h) at roughly the same time, Kakoz appears to strike out towards Leo – but the latter is out of reach and Kakoz does not make contact;

(i) Floran is shown behind the plaintiff and to the right, but facing the action;

(j) Naje is shown passing behind Floran, facing the action, but heading towards the foyer door; and

(k) Elley is shown behind Naje, close to the wall inside the foyer door and probably involved in a scuffle with another man.

It was not ultimately in dispute that the events shown in the One second video must have occurred in the first few seconds after the plaintiff entered the foyer.[120]
[120]Plaintiff’s outline of closing submissions (n 15) [61].

More particularly –

(a) the Camera 16 footage appears to show the plaintiff running into the foyer at about 13.23, which is approximately nine seconds before Naje appears to walk out of the foyer door and onto the forecourt (13.32);

(b) the One second video shows Naje in the foyer passing behind Floran, heading towards the foyer door;

(c) accordingly, the incidents shown in the One second video are likely to correspond with about 13.30-13.31 on the Camera 16 footage;

(d) it follows that the One second video shows the plaintiff in the centre of a physical confrontation immediately inside the foyer door about 7 or 8 seconds after he ran in;

(e) the 47 second video shows a different part of the foyer, and commences with a confrontation or standoff developing between Jamal (who is brandishing the bloodstained knife) and Kakoz and the plaintiff (0.00);

(f) at about 0.12, the 47 second video shows the plaintiff being stabbed by Jamal;

(g) at about 0.17, the 47 second video shows Kakoz being bundled out the foyer door onto the forecourt;

(h) the Camera 16 footage shows the same event at about 14.00;

(i) accordingly, the very first part of the confrontation or standoff between Jamal and Kakoz and the plaintiff shown in the 47 second video (0.00) must correspond with about 13.43 on the Camera 16 footage;[121] and
[121]That is, about 17 seconds prior to 14.00 on the Camera 16 footage (n 23).

(j) it follows that the first part of the confrontation or standoff between Jamal, Kakoz and the plaintiff occurred –

(xix) about 13 seconds after the events shown in the One second video; and

(xx) about 20 seconds after the plaintiff ran into the foyer.

In light of the above, while the periods involved are short, and the incidents involved are highly dramatic and intense, the plaintiff is shown to be involved in two different confrontations in two different parts of the foyer within a period of about 20 seconds after he ran in.

Further, the arrangement of the plaintiff’s shirt between the point at which he ran into the foyer (Camera 16 footage at 13.23) and 13 seconds later when he is shown in the confrontation with Jamal (47 second video at 0.00) is strikingly different. The difference strongly suggests that the plaintiff was involved in some form of violence in the intervening period which, of course, includes the incident shown in the
One second video in which, at the very least, he appears to be shown being struck in the face by Leo.

In respect of the subsequent confrontation or standoff with Jamal, of course, the plaintiff said that he had been asking Jamal to drop the knife ‘to stop this from hurting anybody’[122] and had earlier said that he was stabbed ‘[f]or no reason whatsoever’.
[122]T181.

As to his entreaties to Jamal, however, the cross-examiner suggested that the plaintiff had said to Jamal ‘[l]et’s go outside and fight, man to man’, which he initially denied. However, shortly thereafter he said –

… I could have possibly said that – at least for him to drop off the knife, and fight with them outside, not me, … fist to fist, so nobody gets hurt.[123]

[123]T181-2.

Shortly thereafter, the possibility resolved into an implicit concession, albeit one in which the plaintiff sought to exclude himself from any suggestion of a fight ‘fist to fist’ –

I said to Jamal multiple times, “Drop the knife, there’s no need for that.” It wasn’t working. And then I said, “Drop the knife and fight like a man outside with them.” Not with me – with them. If it was like that, no-one would have got hurt.[124]

[124]T182.

In respect of the confrontation with Jamal, the 47 second video initially shows the plaintiff adjacent to the end of a long table to the inside right of the foyer door (0.00).[125] At that point, Kakoz is facing off against Jamal, who is waving the bloodstained knife.
[125]That is to say, ‘right hand side’ if the foyer is viewed from the forecourt outside the front door of the foyer.

Nonetheless, the plaintiff moves between Kakoz and Jamal (0.01). Behind the plaintiff, Kakoz removes his belt. At that point, the plaintiff waves his finger at Jamal, who is looking at him and continuing to wave the knife (0.02).

Kakoz then moves out from behind the plaintiff, wielding the belt with a view to disarming Jamal. He strikes out at Jamal with the belt which then falls from his grasp (0.05).

The plaintiff then moves back towards Jamal with his finger pointed (0.06). Jamal waves a white napkin at the plaintiff, seemingly indicating to him to keep out of it, or to move away. In the meantime, Kakoz appears to have moved out of the frame and away, although his reflection can be seen in the wall mirror and Jamal appears to be still looking at Kakoz (0.08).

Jamal and the plaintiff are then both seen to look at and commence moving towards an altercation involving Kakoz, which cannot be seen directly (although part of it can be seen in the reflection in the wall mirror) (0.09).

Jamal continues to look at the altercation and the plaintiff turns to look at Jamal. In so doing, the plaintiff walks towards Jamal’s path with his finger pointed (0.10).

The position of the camera then alters, and Kakoz is shown fighting with another man next to a table with a heavily bloodstained tablecloth. Jamal continues to move towards the altercation and the plaintiff moves into what might be thought to be the edge of Jamal’s intended path (0.11). In that sense, the plaintiff presents as moving into and potentially across the path between Jamal and the altercation involving Kakoz and the other man. The plaintiff then moves slightly towards Jamal (0.11) and is stabbed (0.12).

Whatever else might be said about the sequence of events to which I have referred –

(a) the plaintiff is fit and strong (and taller than Jamal, and Kakoz);

(b) the overall physical dynamics are suggestive of an alliance between the plaintiff and Kakoz (who is, at various points, seen alongside and even behind the plaintiff while both are facing off with Jamal), albeit that in a general sense the plaintiff appears to be seeking to suggest to Jamal that the knife not be used (again) while Kakoz is unquestionably aggressive and intent upon violence;

(c) at no point is the plaintiff shown to be restraining Kakoz – including while Kakoz strikes out at Jamal with the belt and then loses his grip;

(d) having lost his belt, Kakoz moves away to engage in another fight;

(e) the plaintiff and Jamal seem to see that fight and each begins to move towards it;

(f) the plaintiff then moves towards or into Jamal’s path while waving his finger at him and is stabbed;

(g) in so moving, the plaintiff may well have been perceived by Jamal as shaping up to physically prevent him from further approaching the fight underway between Kakoz and the other man; and

(h) at all material times, the very large and bloodied knife can be seen in Jamal’s right hand.

In light of the video footage to which I have referred, I cannot accept that the plaintiff was stabbed ‘[f]or no reason whatsoever’ or that it is appropriate to regard him as having played merely the role of ‘peacemaker’. Even if he might have thought that his overall intentions were good, he plainly put himself in a position in which, by his actions, his privately held intentions (if, in fact, he then held them) were very much at risk of being and, in my view, probably were, understood quite differently by Jamal.

Finally, the cross-examiner asked the plaintiff about his criminal history, to which he said –

… all that happened 2013 and 14. I don’t really remember …[126]

[126]T214.

The plaintiff was then taken to a LEAP record which revealed him to have faced drug possession charges in 2015 (including for possession of methylamphetamine), as well as having appeared in the County Court in February 2016 on charges of aggravated burglary, common law assault and theft.[127] The plaintiff could not recall not referring to aggravated burglary during his evidence-in-chief.[128]
[127]Exhibit D5.
[128]T215.

In that connection, the plaintiff said –

I’ve already said … that I was young and stupid and I admitted I’ve been to prison and … I used to do silly things but I’ve learnt [sic] my lesson and I became a better person, so.[129]

[129]T215.

The plaintiff was asked further questions about his criminal activities and history and said –

… I don’t remember in 2016 and 14 and 13. That’s 10 years ago, 12 years ago.[130]

[130]T217. See also T223.

When then asked about having given evidence-in-chief that ‘after 2014 until this day nothing’, he said –

Yeah well I’ve mixed it up. It was 2016.[131]

[131]T218.

More broadly, of course, the plaintiff had sought to suggest that he had become a ‘better person’ and, in his evidence-in-chief, had referred to being ‘completely changed’ since 2014, meeting his now wife in 2015 and ‘working together … into the right path’ since 2017.

However, the LEAP record, together with the concession that the plaintiff ‘mixed up’ the chronology concerning his criminal activities means that, at the very least, the general proposition that he has been ‘completely changed’ since 2014 cannot be accepted.

More broadly, however, the present events took place in December 2019. It was not suggested that at any point on that evening the plaintiff was in the company of his now wife, although he is plainly shown to be in the company of Elley and Kakoz.

In that connection, Sami gave evidence concerning the development of the Corkage dispute, including an initial discussion between Sami, Elley and Kakoz outside the foyer door, parts of which can be seen in the Camera 16 footage (1.35-4.48). In that regard, he said –

Well, the discussion starts with who is the owner of La Mirage, (indistinct), and when he was walking out he says, “It’s on you”, so I heard his voice, from Kakoz, he’s telling me, “He’s mentioning you”, that’s why I - and then David [Elley], he came to me and he says, “I’m David”, in our language, yes. Then he says, “You didn’t respect us this night”, I said, “Why? What do you mean we didn’t respect you guys?” Adaay [Kakoz], he says, “You charged us $300 for the corkage”. And then when he said that I said, “Well, what you get charged?”, he said, “Yeah, we get six bottles of drink”. And I said, “Each bottle is $50, that means $300, so what’s wrong with it?”, and he says, “No, because we are from the same community you need to look after us so we can look after you”. I said, “Well, most of the community, they are here, like, it’s Muslims and I expect everyone, not just you or them. And if you’ve been invited by someone - you purchased a ticket for 2 or $300, why you not offering the corkage?”, he says, “No, we were invited here by one of our friends so we didn’t pay for the ticket”. And I said, “Well, if you’ve been invited then they should look after you for the drinks, why you ask me?”. That’s how the conversation started. And then he said, “No, you know Rami and Samir”, I said, “Yeah, I know them, what’s wrong with them?”, he says, “No, we can be your supporter but if you support us” I said, “Well, that’s how it is. If you get your drink that’s when they didn’t overcharge you. But as you say, you get the right charge”. And he says, “No”, I said, “Well, you should tell who invited you, on the VIP table, right?”, he says, “Yes”, I said, “Well, you need to make sure that the organiser, he told you about the corkage”, and he said, “No, no-one told me”. I said, “Well, let me walk you in so I can show you the contract, we keep a copy of this contract on the bar. If someone asks why we charge, well, this is our rules, if you need anything, if you want to return your ticket you ask the organiser and he will return your money, we don’t want to (indistinct)”.[132]

[132]T512-13.

Later, Sami gave evidence concerning some aggressive and quite unacceptable language used by Kakoz, as well as events which unfolded inside the foyer, and said –

As soon as we walked in there is still Jamal outside and Adaay [Kakoz] is still swearing, this is just a few seconds, like, he’s still talking to me, me and David [Elley] we’re still facing going to the bar, and he started - the second swearing he said - Jamal he walked in, so he repeated to him. I heard Jamal’s voice, like, he says, “Well, don’t swear on him”, because this time Adaay is swearing, which is his son, Jamal, walking in, “I’m going to fuck your mother and who is going to be your back up?”. So Jamal, he says, “Hey, watch your words, don’t swear on him”. That’s the time Jamal is just walking in. So he went across to the table which is next to the toilet, the table was there, and then Adaay straightaway he come past me and David, so he went to Jamal - David, he left me as well. So that’s the screaming that started at that time, and my - Leo coming from the other door, he starts screaming but these two went to Jamal.[133]

[133]T515.

Sami said that Elley and Kakoz started ‘punching’ and ‘fighting’ and were then ‘pushed out’ of the foyer onto the forecourt.

A little later, of course, Elley and Kakoz are shown to return and engage in very serious violence during the Brawl. In that regard, among other things, the 47 second video shows Elley retrieving an extendable baton from the hip of his pants and seeming to strike a kneeling man over the head with it, in the course of which the baton flies from his right hand (0.29).

In his evidence, the plaintiff disclaimed any knowledge of the baton.[134]
[134]See T196, 198.

In any event –

(a) the sharp sound when the baton strikes the kneeling man and subsequently falls to the floor suggests that it was made of metal; and

(b) the evidence was that security guards were ‘wanding’ patrons upon entry to the foyer prior to the concert (although, in cross-examination, the plaintiff said that he and Elley and Kakoz had ‘walked straight in’ and denied having been searched with a wand).[135]

[135]T210.

In the circumstances, however –

(a) I do not accept that the plaintiff and others ‘walked straight in’ without being wanded;

(b) it follows that it is unlikely that Elley had the baton at the time of the concert;

(c) after the Corkage dispute, it is likely that the plaintiff sought to drive Elley and Kakoz away in Elley’s car;[136]
[136]In evidence, the plaintiff confirmed that Elley gave him the keys to the car: T135. In opening, senior counsel for the plaintiff stated that it was ‘David Elley’s car’ (T56) and Dr Zalewski appears to have been instructed that Elley gave the plaintiff ‘the keys to his car’: Exhibit P4, CB 196. In the circumstances, I do not accept that the car driven by the plaintiff belonged to Kakoz, as stated in the plaintiff’s outline of closing submissions (n 15) [42].

(d) in the circumstances, it is likely that Elley retrieved the baton from his car at the same time as the car was being driven by the plaintiff;

(e) in the Camera 16 footage, Elley appears to be reaching for the baton at his hip at the point at which he approaches the door to re-enter the foyer immediately prior to the Brawl (13.02);

(f) in the 47 second video, Elley is, of course, shown to use the baton in quite shocking violence less than a minute later (0.29); and

(g) much of the above makes it practically impossible to believe the evidence of the plaintiff that he did not know why Elley and Kakoz wanted to return to the foyer, did not know that they were intent upon fighting and did not know that Elley had a baton.

In any event, the evidence of Sami, which I accept, suggests that Elley and Kakoz attempted to stand over him before ‘punching’ and ‘fighting’ during the Corkage dispute, and the various videos and Camera 16 footage amply show the violent disposition of each of them and that the plaintiff was involved in at least some aspects of the confrontations and altercations.

In the circumstances, whatever might be said about the plaintiff’s aspirations before and since his marriage in 2023 (which I should not be understood to be discouraging), having been in the company of men such as Elley and Kakoz and involved in very serious violence fomented by them as late as December 2019, it is not easy to accept that the plaintiff has been wholly devoted to ‘the right path’ since 2017.

Albeit that the plaintiff seems now to have settled upon a general narrative that would reflect upon him favourably, the various videos and other evidence to which I have referred would suggest that –

(a) significant parts of his present narrative must be wrong; and

(b) other parts of the narrative are, at the very least, highly improbable and cannot be accepted.

In particular, I do not accept that–

(a) the plaintiff has been ‘completely changed’ since 2014;

(b) the plaintiff walked out of the bathroom at the time of the Corkage dispute, saw Elley and Kakoz ‘talking’ and then walked straight out of the foyer and into the car;

(c) the plaintiff did not know that Elley and/or Kakoz had been involved in a fight following which they were removed from the foyer after the Corkage dispute;

(d) the plaintiff kept his distance from others after the Corkage dispute, particularly Elley and Kakoz;

(e) the plaintiff did not know why Elley and Kakoz wanted to get out of the car and return to the foyer;

(f) the plaintiff did not know that Elley and Kakoz were returning to the foyer to initiate a fight;

(g) the plaintiff saw Elley and Kakoz walking from the car ‘normally’ and ‘didn’t see any aggression, nothing’;

(h) the plaintiff entered the foyer and saw a pile of people on top of Elley and merely lifted one person off the pile;

(i) during the Brawl, the plaintiff ‘did not lay one hand on nobody’ and was not involved in the physical altercations;

(j) the plaintiff merely said ‘stop fighting’ immediately prior to being stabbed by Jamal; and

(k) during the Brawl, the plaintiff was merely some kind of ‘peacemaker’ and nothing more.

In the circumstances –

(a) the influence upon memory of factors such as time, litigation and wishful thinking are recognised and well-understood;[137]
[137]See, eg, Nominal Defendant v Cordin [2017] NSWCA 6, [165].

(b) the plaintiff did not present as a reliable historian;

(c) in particular, the plaintiff’s account of events seems likely to have been influenced by elements of wishful thinking as well as reconstructed by reference to an incomplete and rather blinkered review of the videos seen after he was discharged from hospital (which review does not seem to have included the One second video);

(d) in that context, I feel no confidence that the plaintiff now has any true or reliable memory of the subject events;

(e) in particular, as I have indicated, significant parts of the plaintiff’s present account cannot be accepted; and

(f) consequently, the plaintiff’s evidence concerning the subject events must be approached with very great caution and should not be relied upon in respect of any matter in dispute unless reliably corroborated.

Naje Koru

I have earlier referred to the circumstances in which, on the first day of trial, the plaintiff sought and was granted leave to late serve a subpoena upon Naje to attend to give evidence at trial. In that connection, in opening, senior counsel for the plaintiff stated –

We’re still exploring the role of Naje Koru and we’ll have to see how things develop there when we get some more material about him.[138]

[138]T53.

In the circumstances, it is perhaps hardly surprising that when Naje attended and gave evidence he presented as acutely self-conscious, apprehensive and even fearful. Indeed, at one point, he blurted out ‘I’m not a criminal’.[139]
[139]T288.

More particularly, from the earliest point in his evidence, Naje seemed extraordinarily eager to suggest that he had worked at the function centre ‘employed from Sami’.[140] Albeit that he described himself as ‘head security’, Naje was keen to impress upon the Court that, among other things, he had merely taken direction from Sami, done ‘whatever he [Sami] tell me’ and played no part in the retention of the other security guards who, he said, were also directed by Sami, ‘not me’.[141] Even given in chief, this evidence was strikingly unconvincing.
[140]T260.
[141]T262-4.

Naje subsequently gave evidence-in-chief that –

(a) he did not know whether anyone was ejected from the function centre on the night;[142]
[142]T270.

(b) he could not remember and ‘couldn’t see’ a fight;[143]

(c) he had signed off and ‘just … left’ at 1am together with his wife, who was on crutches;[144] and

(d) on the night, the door to the foyer ‘wasn’t work[ing]’, in the sense that it had to be opened and closed ‘by hand’ – although he said that it could be locked using a key.[145]

[143]T265, 268.

[144]T266-7.

[145]T271-3.

There were some parts of Naje’s evidence that seemed likely to be true, particularly that –

(a) if a fight occurred, ‘we call the police’;[146]

(b) in respect of dealing with fights, ‘really we [meaning the security guards] know our job’;[147] and

(c) in the past, a couple of fights had happened, ‘but not that serious’.[148]

[146]T268.

[147]T269.

[148]Ibid. Naje thereafter specified that there had been ‘three, four fights’ and that he had called the police ‘one, two, three times’: T270.

However, much of the evidence-in-chief to which I have earlier referred is not easy to reconcile with the various videos and the Camera 16 footage, and seems to me to have been warped by forces of acute self-consciousness, apprehension and fear.

Unsurprisingly, during cross-examination, Naje was challenged about those and other aspects of his evidence. Among other things, he was taken to specific parts of the video footage in which he is seen and which must have been taken after 1am. Many of his answers were non-responsive, and even in the face of the videos he sought to maintain, in substance, that he ‘can’t remember nothing’.[149]
[149]See T283-92, 294-5.

In that connection, in closing address, senior counsel for the plaintiff relevantly contended that –

(a) the ‘criminal conduct’ of Jamal was attended by ‘a high degree of foreseeability, because the weapon is being wielded wildly’;[362]
[362]T733.

(b) ‘the defendant’ was ‘on notice’ because there had already been a violent incident, namely the escalated phase of the Corkage dispute;[363]
[363]T734.

(c) the plaintiff did not bring the stabbing on himself ‘in any way’;[364]
[364]T736.

(d) there was no sufficient basis upon which it could be found that the plaintiff had engaged in ‘illegal activity’ within the meaning of s 14G of the Wrongs Act;[365]
[365]T738.

(e) the plaintiff was ‘bound to extract’ the other two men from ‘the troubles they were getting themselves into’;[366]
[366]Ibid.

(f) based upon the evidence of Dr Zalewski, there was a ‘failure to have in place practical solutions to potential problems at an early point in time’;[367]
[367]T739-40.

(g) once Naje had departed, the security arrangements ‘fell increasingly into disarray’;[368]
[368]T740.

(h) the estimation of Dr Zalewski that there should have been ‘six or seven’ security guards was ‘entirely correct’ and, consequently, the Corkage dispute had escalated and not been ‘placated’ or ‘put down’ and the situation had then escalated when Elley and Kakoz returned and ‘began engaging in more violent behaviour’;[369]
[369]T740-1.

(i) in that general connection, further security personnel should have been retained after the Corkage dispute;[370]

(j) as reported by Dr Zalewski, the ‘breakdown in the system of security’ had occurred ‘as events deteriorate[d]’;[371] and

(k) the ‘descent into mayhem’ within a short period of time was ‘a stark indication in itself … of the inadequacies of the systems provided’.[372]

[370]T741.

[371]Ibid.

[372]Ibid.

It will be apparent that the various submissions and assertions had a rather ‘scattergun’ quality that was not alleviated by the shifting and other qualities in the argument to which I have much earlier referred.

In any event, it will be evident that Dr Zalewski’s opinions were central to several of the above submissions, and that was similarly apparent in the plaintiff’s outline of closing submissions that identified and sought to emphasise what were described as Dr Zalewski’s ‘primary criticisms’ of the ‘[d]efendant’s system of crowd control’, namely –

(a)The lack of a proactive (as opposed to reactive) system for crowd control.
(b)That the last two hours of trade is a crucial time, where sufficient security resources are required.
(c)That 3 crowd controllers are required to control one aggressive male person.
(d)That it was inappropriate to have 3 security staff covering the entire venue at the time of the first and second incidents [ie, the Corkage dispute and Brawl], rather that 6 or 7 security ought to have remained until 2 pm [sic: 2 am] and that would not have been unreasonably costly (T420-421).
(e)That crowd controllers are the interveners, rather than others (such as venue staff) who can also watch and report (cf: evidence of LY [Leo] to the effect that security staff were there to simply witness and report).
(f)That he disagrees with the opinion of Mr Smith that it was appropriate to reduce the number of staff towards the end of the shift as statistically the last two hours of trade are the most high-risk in respect of physical violence. Further that 12 am to 3pm [sic: 3 am] on Friday to Saturday are the most high-risk time (Ex. D10, p.4).
(g)In respect of the operation of the door [ie, the front door to the foyer of the Oasis room], it is the responsibility of the owner to ensure that physical measures such as CCTV and the locking mechanism of the door are working.
(h)That the Defendant’s system of crowd control was not documented and that he has never, ever seen a system that’s effective that’s not documented (T420.1-15).
(i)The lack of co-ordination between the two groups of security guards (T421.12).
(j)That the evidence of [Naje] Koru reinforced his opinion of the informal style of security provided at the premises and misunderstanding as to processes and who’s in charge (T422.1-6).[373]

[373]Plaintiff’s outline of closing submissions (n 15) [78].

I should note, for completeness, that the plaintiff’s outline of closing submissions included (or, more accurately, might be thought to have floated) a few further underdeveloped or remnant liability arguments, particularly, as I have earlier noted, the contention that the supervision and/or ‘stationing’ of the three security guards on duty at the time of the Corkage dispute and subsequent Brawl was ‘less than adequate’.[374]
[374]Ibid [36].

From what I have already said about the alleged duties and their respective scopes, it will be evident that the plaintiff’s various submissions touched upon the legal principles relatively lightly, particularly the applicable provisions of the Wrongs Act. In reality, it was apparent that the plaintiff was seeking to win the case by reference to what seemed to be thought to be argument of a relatively normative kind, combined with the persuasive force of the evidence called by the plaintiff, particularly that of Dr Zalewski.

In that context, whatever might be said about the precise legal underpinnings of the plaintiff’s case, the present problem is that much of the plaintiff’s evidence, as well as most of the above contentions, cannot be accepted.

In that connection, I have already discussed, at considerable length, the very real problems and limitations in the evidence of the plaintiff, Naje, Floran and
[375]Which, I should say, is not saved by the various documentary exhibits tendered.
Dr Zalewski respectively.[375] Consequently, it can be said at the threshold that there was ultimately little in the way of an evidentiary foundation capable of being accepted in order that the plaintiff’s overall argument might be made out.

In any event, there are points that probably should be made concerning various elements of the argument outlined above.

In that regard, the ‘wild wielding’ of the knife by Jamal occurred during the Brawl. I accept the submission of senior counsel for the defendants that there is a ‘temporal disconnect’ between that event and what must have been reasonably foreseeable at any earlier and relevant time.[376]
[376]T747.

In addition, Jamal was not an employee of the second defendant, and while Floran (who was also not an employee of the second defendant) gave evidence that he saw that Jamal had ‘something’ under his jacket that later proved to have been the knife (which claim I do not expressly accept),[377] there was no evidence that any concern relating to that ‘something’ was communicated to Sami, Leo or any other employee of the second defendant.
[377]T316. See also T393-396.

Further, I do not accept that –

(a) the escalated phase of the Corkage dispute was not ‘put down’ or ‘placated’; and

(b) the second defendant was thereafter ‘on notice’ that there might be a real risk of another violent incident, let alone the alarmingly violent brawl which, in fact, occurred, and which Elley attended armed with a baton.

While it may be accepted that, after the Corkage dispute, Kakoz and Elley continued to harbour ill will towards at least Jamal, it does not follow that the Corkage dispute was not appropriately ‘put down’. After all, Kakoz and Elley were evicted from the foyer, shepherded away from the forecourt, and got into Elley’s car and were seen to leave.

In that connection –

(a) Sami and Leo each gave evidence that they did not expect the men to return;[378]
[378]T521, 595.

(b) Mr Smith gave evidence that –

… it’s highly unusual that when people are removed from the premises, jump in their car and then drive away from the premises, that they return.[379]

(c) Dr Zalewski may also have accepted that it was not unreasonable to have believed that the incidents had ceased.[380]

[379]T638-9.

[380]T447.

There was otherwise muted evidence of ‘a few’ fights having occurred at the function centre over a period of 10 years, and there was nothing which suggested that there had ever been an incident remotely like the present one.

Further, the relevant parts of the Camera 16 footage are much more consistent with the passing and end of any such incidents on the night, in that –

(a) some minutes passed after the eviction of Elley and Kakoz, during which there seems to have been a calming of hostilities;

(b) in particular, Elley and Kakoz each attempted to re-approach the foyer door but were shepherded away and into the gloom of the car park;

(c) a group of men returned from the car park, including ‘Moffa’, who signalled with his hand that the men were going or gone; and

(d) some further minutes then passed in which there was essentially no activity of any note.

In the circumstances, I accept the relevant evidence of Sami, Leo and Mr Smith, and do not consider the belief of Sami and Leo to have been unreasonable.[381]
[381]Dr Zalewski gave rather argumentative evidence broadly to the contrary, which I do not accept: T447-9.

I do not accept that the system of security ‘fell increasingly into disarray’ after Naje departed, or that there was any relevant ‘misunderstanding as to processes’ or as to who was relevantly ‘in charge’.

Naje was, of course, still present when the Brawl commenced, although he had earlier signed off.

In any event, Sami and Leo plainly understood the function of security at such an event. Both gave evidence of the ‘formula’ by reference to which numbers of guards were to be appropriately assessed.

Further, even within the limitations of their presentations as a witnesses, neither Naje nor Floran said that the system of security fell relevantly into ‘disarray’.

For his part, as I have earlier noted, Naje was directed to the question of ‘fights’ and said ‘really we know our job’.[382] He was plainly referring to himself and the other security guards. He did not say that after he left, Floran, Sabah and Raad would have been any less able to do that for which they had evidently been trained.
[382]T269.

Similarly, Floran said that ‘[a]s a security, we know what to do in terms of fight’.[383] It was plain that he was of the view that it was not necessary for the second defendant to instruct the security guards what to do in the event of a fight. He also did not say that the system was ‘in disarray’ after Naje left.
[383]T307.

I also do not accept the assertion that the plaintiff did not bring the stabbing on himself ‘in any way’. While the plaintiff appears to have backed himself not to end up being stabbed, that does not mean that there was not a very real and obvious risk of it.

In that connection, at the very least –

(a) the plaintiff ran into the foyer after Elley and Kakoz while a major fight was plainly in the process of erupting;

(b) I cannot accept that the plaintiff was ‘bound to extract’ Elley and Kakoz ‘from the troubles that they were getting themselves into’ and, of course, he is not seen to do so;

(c) instead, the plaintiff joined in the fighting by, at the very least, striking Sami and, in turn, being struck by Leo;

(d) it seems very likely that his participation in that aspect of the fight was seen by Jamal;

(e) whether that occurred or not, the state of the plaintiff’s shirt by the time he is seen to be involved in the standoff with Jamal is indicative of him having been involved in a violent physical altercation[384] – and the condition of his shirt must have been seen by Jamal;
[384]47 second video (n 21) (0.00-0.03). I do not accept the plaintiff’s theorising in respect of the condition of his shirt: T226-9.

(f) the plaintiff stood essentially alongside Kakoz (or in front of him) during the standoff with Jamal, and did not restrain Kakoz in any way, including while Kakoz struck out at Jamal with a belt;

(g) during the standoff, the plaintiff said to Jamal that it was better to fight outside without the knife and ‘like a man’;

(h) during the whole of the standoff, Jamal is plainly seen to be waving a large bloodstained knife which, implicitly, has already been used to stab at least one other person;

(i) the plaintiff conceded that he saw the blood on the knife and that ‘obviously it was … one of us that was stabbed’;[385]
[385]T185.

(j) in those circumstances, practically everyone else in the relevant part of the
47 second video is seen to appreciate the serious risk posed by Jamal and the knife – among other things, persons who look like staff members are shown to be edging along the far wall seeking to flee to safety (0.00-0.05) and, for his part, Floran said that, after seeing the knife –

(vi) he was ‘not going to touch no-one’ (meaning Jamal);

(vii) he sought to ‘go far away’; and

(viii) it was common sense to move away from a person who has a knife;[386]

(k) like the staff members to whom I have referred, the events and circumstances shown in the 47 second video demonstrate quite clearly that the plaintiff could have retreated from Jamal and sought an exit to safety – which, in substance, the plaintiff ultimately conceded; and

(l) instead, the plaintiff remained in a zone of very acute danger proximate to Jamal and the knife, and then stepped towards and perhaps into the path of Jamal in circumstances in which he may well have been understood by Jamal to be about to physically prevent him from seeking to intervene in another fight involving Kakoz.

[386]T371, 378-9, 382. See also the statements of Onel David (‘All the staff then ran to the back of the venue’ and ‘The fight made me feel very scared that someone would be hurt’: Exhibit P10 [7]-[8]) and Rami Wassouf (‘I then left through the back’ and ‘I was afraid, I didn’t wasn’t [sic: want] to get stabbed. If I stayed I could have gotten stabbed by mistake. I didn’t want it to happen’: Exhibit P11 [23]-[24]).

In those circumstances, whatever else might be said about the plaintiff’s claimed state of mind at the time, he plainly put himself in harm’s way and at very grave risk of exactly what subsequently ensued. In my view, there is much to be said for the proposition that the plaintiff recklessly courted the risk of very serious injury and, in a practical sense, brought his subsequent injuries upon himself.

For completeness, I should perhaps indicate that I cannot accept the plaintiff’s various assertions to the effect that he was not aware of the risk of being stabbed.[387] Whatever else might be said about that evidence, in cross-examination the plaintiff appeared to acknowledge that ‘anybody’ could have been hurt by Jamal and his knife, which, the plaintiff suggested, should be taken to explain certain of his actions seen in the
[387]See, eg, T190.
[388]T180-1.
47 second video.[388] Implicitly, that was an acknowledgement that the plaintiff had known of the risk that Jamal might hurt ‘anybody’ with the knife, including him.

Finally, while the plaintiff sought to array several contentions against the proposition that he engaged in ‘illegal activity’,[389] on their face the statutory words are not restricted to specific criminal and/or statutory offences, and no such proposition is evident in the only directly relevant authority referred to in argument.[390]
[389]Plaintiff’s outline of closing submissions (n 15) [97], [101]-[103].
[390]Raciti v Wadren Pty Ltd [2006] VSCA 132, [45].

Further, that submission, as well as the plaintiff’s other contentions in respect of ‘illegal activity’, seemed to be directed to little more than an attempted distraction from the following –

(a) the plaintiff had attended a ticketed event in which his entry and exit had been controlled by security arrangements;

(b) after the eviction of Elley and Kakoz from the foyer, Floran directed the plaintiff to ‘please, just go with them [and] leave’[391] – which, in submissions, the plaintiff effectively conceded;[392]

(c) having left the ticketed event, and been directed by Floran to take Elley and Kakoz and ‘go’, the plaintiff had no right to re-enter the foyer and, as Sami explained, would not have been permitted to do so unless he had ‘missed’ or forgotten something inside;[393] and

(d) in the circumstances, there does not seem to have been any legal or any other right, express or implied, for the plaintiff to re-enter the foyer, and certainly not in aid of a violent fight instigated by his friends.

[391]T335.

[392]Plaintiff’s outline of closing submissions (n 15) [40], [42], [47]. The plaintiff relied upon that evidence in support of a contention that Floran’s direction should be thought to have conferred upon him a right to return to the premises if his friends returned. That was not the import of Floran’s evidence and, in any event, it is fanciful to think that such a statement by a security guard should be taken to confer upon the plaintiff any form of legal or other right to return to the premises in order to participate in a large and violent brawl fomented by his friends. However, albeit that in evidence the plaintiff denied being given such a direction (T161), having regard to the treatment of it to which I have referred, I am inclined to accept that Floran must have given such a direction.

[393]T562.

In those circumstances, in simple terms, the plaintiff entered the foyer as a trespasser and assaulted Sami. [394] Those actions would seem to me to amount to the plaintiff engaging in ‘illegal activity’.
[394]I attach no weight to any relevant terms of the Victoria Police summary which, of course, was prepared in circumstances quite different to the present: Exhibit P17.

Finally, the contention that the ‘descent into mayhem’ was ‘a stark indication in itself … of the inadequacies of the systems’ amounts, in essence, to an assertion that the fact that the Brawl occurred at all was indicative of negligence or breach of duty on the part of the second defendant.

There was no pleading or other suggestion that the doctrine of res ipsa loquitur should have any present application. I do not mean to suggest that there could appropriately have been such a contention. In any event, I do not accept that the Brawl was the kind of event that would not ordinarily occur without negligence or breach of duty.[395]
[395]Cf Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121. See also Lafranchi v Transport Accident Commission (2006) 14 VR 359, in which the doctrine of res ipsa loquitur was referred to as ‘the RIL principle’.

In that overall context, the submissions of the second defendant helpfully identified and addressed various statutory provisions and principles. As I have indicated, however, the manner in which the plaintiff’s case was pursued does not make it presently necessary to engage in any detail with all of the statutory provisions and other legal propositions.

In that regard, the second defendant admits that it owed the plaintiff a duty to take reasonable steps to protect him from reasonably foreseeable harm in connection with his attendance at the function centre for the concert.[396] From that point, it is presently sufficient to consider the plaintiff’s claims of breach.
[396]A duty in similar terms was ultimately stated by the plaintiff: plaintiff’s outline of closing submissions (n 15) [68].

In that connection, the second defendant helpfully organised the plaintiff’s claims in a manner that, in closing address, came to be further refined and delineated into three areas of particular contention, namely –

(a) ‘the presence or absence of a written plan or risk assessment or some sort of written document’ in respect of security arrangements and response;

(b) ‘the number of security guards present at the relevant time and whether that was sufficient’; and

(c) ‘the door, in terms of it being locked or otherwise’.[397]

[397]T664.

Senior counsel for the plaintiff did not take issue with that delineation of the issues.

It will be apparent, of course, that the opinions of Dr Zalewski are relevant to each of the above areas of contention.

As I have earlier noted, it was not in issue that there were no relevant written plans, risk assessments or standard operating procedures.

In his first report, Dr Zalewski stated –

Systems of security/crowd control at licensed premises are commonly introduced through a formalised (documented) and predictably structured system that flow from a risk assessment. A risk assessment is important as it assists the venue operator to identify, analyse, treat and review risks in and around the venue and therefore enhance safety and security of all persons present.[398]

[398]Exhibit P4, CB 205.

Dr Zalewski later referred to training and standard operating procedures, including in respect of ‘weapons’ and ‘aggression and violence’. In respect of the latter,
[399]Exhibit P4, CB 228-9.
Dr Zalewski’s report attached an example procedure entitled ‘Aggression, Violence and Unacceptable Behaviour’.[399]

In that connection, Dr Zalewski stated that the second defendant should have taken precautions, including the development and introduction of protocols relating to ‘removal of aggressive/disruptive patron(s)’, so as to ‘overcome the exercise of discretion by operational staff’. In his opinion, if ‘an adequate system for crowd control’ had been introduced, ‘the incident involving injury to the [p]laintiff would have been avoided.[400]
[400]Ibid CB 218.

Those assertions were essentially repeated in Dr Zalewski’s second report, in response to the report of Mr Smith.[401]
[401]Exhibit P5.

Dr Zalewski’s third report was directed to the oral evidence given by Naje, which was said not to alter Dr Zalewski’s earlier expressions of opinion.[402]
[402]Exhibit P6.

The relevant part of Dr Zalewski’s evidence-in-chief was similar to the highlighted aspects of his first report, as were parts of his evidence in cross-examination.[403]
[403]See, in particular, T417. See also T441-2, 454-60.

That said, in cross-examination, Dr Zalewski said, among other things –

(a) if ‘good practices’ had been followed, ‘none of us would be in this room today, no-one would be hurt’;[404]
[404]T441.

(b) the exercise of discretion by individuals was ‘the weakest part of a system’ which was ‘why you have written documentation’;[405]
[405]T455.

(c) ‘you don’t give people documents to read. You brief them and then you supervise them appropriately to make sure that they are operationally sound’;[406]
[406]T458.

(d) ‘of course’ it is necessary for people to exercise discretion in a ‘dynamic situation’ of the present kind;[407] and
[407]Ibid.

(e) in respect of the example procedure appended to his first report –

If a system is set up correctly, then there should be an intervention before the violence erupts. But as we know, sometimes violence is just spontaneous, you have no control, and you just have to intervene.[408]

[408]T460.

For his part, Mr Smith relevantly acknowledged that it was ‘best’ to have ‘things written down’, although he also said that it was ‘not uncommon’ and ‘not probably the norm’ for such procedures not to be written. In the end, in his view –

(a) it was about ‘getting the stakeholders together’; and

(b) in the present instance, written plans, protocols and procedures would not have made any difference.[409]

[409]T625-6.

As Mr Smith explained in cross-examination, ‘you want to have tactical flexibility so people are able to respond to the fluid and dynamic nature of a tactical response’.[410] In that connection, he later said –

… you wouldn’t want a person who has no experience in that area, such as a venue manager, telling security how to perform physical evictions. That’s what the security training and the defensive tactics unit that they do within their licencing training is for. So this is what you employ professional security personnel to do on the expectation that they know how to … deal with fights. … You don’t want somebody who doesn’t have that expertise trying to be over-prescriptive in a tactical situation.[411]

[410]T630.

[411]T635-6.

I have already referred to my reservations about significant parts of Dr Zalewski’s evidence, which extend to the evidence to which I have referred.

In that connection, in evidence-in-chief, and even early in cross-examination,
Dr Zalewski seemed intent upon advancing broad assertions to the effect that a system including documentation would have avoided the plaintiff’s injury, without grappling with exactly how any such documentation would have led the venue management and security guards to have acted any differently when dealing with the Brawl.

Later in cross-examination, however, Dr Zalewski was essentially forced to acknowledge that it was not really about giving guards ‘documentation to read’ and that there was, in fact, a place for the exercise of discretion and judgement by guards[412] (which, in his first report, he had said could be ‘overcome’ by ‘step-by-step instructions’).
[412]T458.

Further, when taken to the example procedure, Dr Zalewski acknowledged that it was relevantly directed to separating and removing people and that, in the present instance, that had occurred.[413]
[413]T458-60.

From that point, Dr Zalewski might be thought to have sought to distract from the terms of the example procedure by asserting that there should have been intervention before the violence occurred, albeit that sometimes ‘you have no control’. The latter, I would have thought, is very much the present position.

As with the other aspects of Dr Zalewski’s evidence to which I have earlier referred, in my view his evidence concerning the presently relevant topic was largely argumentative and ultimately unpersuasive.

I should add that neither Naje nor Floran were taken to any example written documentation and, accordingly, neither gave evidence that any particular part of such a document would or could have caused the guards on duty to have acted differently when responding to the Brawl.

Indeed, as I have noted more than once, each gave evidence to the effect that, in respect of fights, ‘really we know our job’ and so did not need to be relevantly directed by venue management.[414] Significantly, it seems to me, Naje and Floran each gave that evidence in chief.
[414]T269, 307.

In the present circumstances, it seems to me to be ultimately unnecessary to determine whether the failure of the second defendant to have prepared written documentation of the kind referred to by Dr Zalewski was in breach of any duty. In part, that is because I accept Leo’s evidence concerning his pre-event briefing with Naje which, it seems to me, was a briefing of the appropriate ‘stakeholders’ of the kind referred to by Mr Smith. More specifically, however, it seems to me to be unnecessary because of Mr Smith’s further evidence, which I accept, that in the present instance written documentation of the kind referred to by Dr Zalewski would not have made any difference.

The second area of contention concerns the number of security guards on duty at the time of the Corkage dispute and Brawl.

In that connection, of course, it will be evident that, despite the plaintiff’s flirtation with the proposition that other security guards might have been available, I accept that –

(a) both incidents occurred after Naje signed off and the 12 security guards provided by the promoter had departed;

(b) at or shortly after that time, only ‘a few’ guests remained in the foyer to the ‘Oasis room’; and

(c) Floran, Sabah and Raad remained on duty.

It follows that there is nothing in Dr Zalewski’s contentions concerning a lack of appropriate collaboration between the two groups of security guards.[415]
[415]See, eg, T410.

Further, Mr Smith confirmed, in evidence which I accept, that –

(a) the applicable ‘security span of control’ was ‘1 plus 1 for every 100’ patrons;

(b) it was common practice to reduce the number of security staff as the number of patrons reduced; and

(c) the retention of three security guards after 1:30am was ‘in excess of the industry standard’ and ‘still a very adequate span of control’.[416]

[416]T621-2.

In that context –

(a) I accept that the retention of three security guards after 1:30am was consistent with exercising reasonable care for the safety of remaining guests and staff;

(b) it will be evident that I do not accept that the response to the escalated Corkage dispute or the Brawl was in any sense deficient; and

(c) in particular, Dr Zalewski’s opinions concerning the present relevance of the ‘witching hour’, the inability to determine how to reduce the number of security guards and that ‘something north of six or seven’ security guards were required ‘until the last person leaves’ are unpersuasive.

Further, like aspects of the evidence of Dr Zalewski to which I have earlier referred, many of the plaintiff’s submissions concerning numbers of security guards seemed to be propelled by notions that owed a great deal to hindsight. For example, senior counsel for the plaintiff submitted as follows –

The evidence from Mr Smith … was that one difficult customer, if I can put it that way, may require up to three crowd controllers, but if you’ve got two aggressors, such as were present in the present case, then … that would indicate that the figures advocated by Dr Zalewski of six or seven [sic: ‘north of six or seven’] crowd controllers were entirely correct and accurate for the needs of securing these particular premises.
And they weren’t there, and because they weren’t there, the first fight [ie, the Corkage dispute] escalated and wasn’t put down, wasn’t placated, as Dr Zalewski said it should have been. … and it escalated when they returned to the premises and began engaging in more violent behaviour [ie, the Brawl].[417]

[417]T740-1.

To be clear, in respect of such evidence and submissions, it may be accepted that three security guards were ultimately unable to prevent the Brawl, particularly in circumstances in which Elley was armed with an extendable baton and all three men were evidently intent upon very serious violence. However, it does not follow that the failure of the second defendant to retain more than three security guards after 1:30am was negligent or in breach of duty.[418]
[418]Cf Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, [56]-[57].

Further, having regard to the fact that Elley was armed, I am not at all convinced that ‘six or seven guards’, or even more, would have prevented the re-entry of the men or the eruption of the Brawl. As Mr Smith observed, ‘once a weapon gets produced …, that exceeds the capability of security’[419].
[419]T645-7.

In reality, it seems to me that in circumstances presented by the evidently unprecedented, not reasonably expected, quick, determined and exceptionally violent re-attendance of Elley, Kakoz and, in due course, the plaintiff, no reasonable number of security guards would have likely avoided the Brawl.

The final area of contention, of course, concerns the foyer door.

In that regard –

(a) I have earlier determined that the door was not ‘broken’ or ‘not functioning correctly’; and

(b) as that was (correctly) identified by senior counsel for the plaintiff as being the ‘thrust of our case’ against both defendants,[420] the overall submission must fail.

[420]T732-3.

That brings me to the ‘remnant’ arguments directed to notions such as ‘insufficient’ supervision, ‘stationing’, training, briefing, delegation, co-ordination and CCTV, as well as any failure to call the police and the suggestion that, in some way, the plaintiff is to be regarded as having been caught in the ‘agony of the moment’.[421]
[421]As to the latter, see plaintiff’s outline of closing submissions (n 15) [108].

In light of everything which has been said to this point, it is probably sufficient to say that –

(a) I do not accept that the second defendant causally breached its duty of care to the plaintiff in any of the ways suggested;

(b) I do not accept that, at any relevant point, the plaintiff was caught in any true ‘agony of the moment’; and

(c) in my view, that is especially not so given he elected to park and leave the vehicle in order to run across the forecourt into an uncontrolled and exceptionally violent brawl.

In the circumstances, it is strictly unnecessary to determine the defendants’ contentions in respect of the chain of causation as well as the pleaded defences of volenti non fit injuria (as modified by the relevant provisions of the Wrongs Act), ‘materialisation of an inherent risk’ and contributory negligence.

In particular, it seems to me to be undesirable to determine the defence of contributory negligence in circumstances in which I have not found any causal breach of a duty owed by either defendant.

That said, without expressing any final view in respect of any of the other points and defences, it will be evident from that which I have already said that there is much to be said for the propositions that –

(a) the present risk of harm was obvious to a reasonable person in the position of the plaintiff;

(b) the plaintiff was not wholly blind to that risk; and

(c) the harm suffered by the plaintiff was the result of the ‘materialisation of an inherent risk’.

G Conclusion

The plaintiff’s claims against the defendants must fail, and, consequently, the proceeding must be dismissed.

I will hear from the legal representatives concerning the form of final orders and any associated applications.

[2025] VSC 58

28 February 2025