POPOVIC v WOLLONGONG SPANISH CLUB LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, CLARKE and SHELLER JJA 18 March 1993, 16 April 1993 [1993] NSWCA 215 NEGLIGENCE — duty of care — injury to innocent patron on dance floor — patron struck by security officer retreating after exchange of blows with other patrons — whether security officer negligent — whether he acted in self-defence or retaliation — whether he ought to have refrained from retaliation in the circumstances of the confined space of the dance venue and his own "huge" size — whether security officer ought first to have called for assistance from fellow workers and/or police — whether blows struck in self-defence — held: (Clarke JA, Sheller JA concurring; Kirby P dissenting): There was no sufficient evidence of negligence on the part of the security officer to indicate a want of care to persons, such as the injured party, dancing in the vicinity — his blow was struck in self-defence and was reasonable and understandable in the circumstances. Rogers v Whitaker (1991) 23 NSWLR 600 (CA) referred to. Kirby P This appeal challenges a judgment entered for the defendant in a personal injuries action brought in the District Court. As it was finally argued, the case concerned the vicarious liability of the respondent club for the alleged failure of a security officer to take reasonable care for the safety of persons such as the appellant. She went to the club for an enjoyable evening, dancing with her friends. She paid for the privilege. Without the slightest fault on her part she was seriously injured when the security officer appointed to safeguard her safety became embroiled in a fight with another patron. In practical terms, what is at stake in the appeal is who should bear the financial and other consequences of the damage and loss suffered by an innocent patron, injured in this way. Should it be the club, as responsible in law for the conduct of its security officer? Or does the common law require that the appellant receive no damages and, instead, be forced to suffer her damage and bear her losses herself? A patron is injured in a dance hall brawl The circumstances in which Ms Lepena Popovic (the appellant) received her injuries are described in detail in the reasons of Clarke JA. The security officer concerned was Mr Dragoljub Prodanovic. He was described as a "huge" man, "very tall" and "of massive build". He was also described as an "experienced" security officer. The appellant, on the other hand, is a slight young woman. She was one of about 200 people present on the first floor of the dance hall provided to patrons by the respondent club. The duties of Mr Prodanovic included, relevantly, to make sure that patrons of the club were well behaved. Such duties did not extend to exhibiting violence or exerting his authority beyond the necessities of maintaining order. The area of the dance facility was described as "small". As it transpires, Mr Prodanovic had a warning of the possibility of trouble. About half an hour before the appellant was injured, he had been called on to separate people engaged in a brawl. When, therefore, at about 11 pm he returned to two of the 2 UNREPORTED JUDGMENTS men who had earlier been engaged in the brawl to reprimand them for sitting on the top of a table near the bar, it is reasonable to impute to him a realization that trouble of some kind might have been a possibility. Despite that, when Mr Prodanovic was confronted by one of the men and hit on the face by him he "thumped him back". Mr Prodanovic asserted in his evidence in chief that he had done this "in self defence". But in cross examination he admitted that the man who struck him was much shorter and slighter than he, being only 5 feet in height and such as to present no risk of danger to the physical well being of a person of Mr Prodanovic's dimensions. It was Mr Prodanovic's "thump back" which then triggered the attack upon him by the recipient and his companions, including with the use of a broken glass. Inevitably, this forced this huge man to retreat onto the dance floor and to engage in a scuffle which resulted in the appellant's injuries. The question is whether, in the circumstances, Mr Prodanovic failed to take reasonable care for the safety of the appellant, being a person in his immediate vicinity and under his protection. In my view, he did so fail. The elements of negligence in the case I approach the case without forgetting the fact that the only basis for bringing home liability to the club is proof by the appellant, relevantly, of negligence on the part of Mr Prodanovic. Perhaps the law should provide a larger protection for innocent patrons such as the appellant. But it does not. Unless she can establish negligence on Mr Prodanovic's part, she must bear her losses alone. Negligence is not a concept of fixed content. It is a notion which is constantly undergoing elaboration and development. There is little doubt that the advent of compulsory third party and workers' compensation insurance, as well as the spread of other forms of insurance, has affected the approach of the courts of the common law in this country to the standard of care that is required. See Johnson v Johnson, Court of Appeal, unreported, 10 September 1991, at 10f, [1991] NSWJB 74; Mitchell v Government Insurance Office (NSW) (1992) 15 MVR 369 (CA), 371. I acknowledge, as Clarke JA points out in his reasons, that the appellant's case would have been much stronger if evidence had been called in her case from an expert in the business of security. Thus, I can imagine, that expert evidence might have been available to show that the last thing a careful security officer does in the noisy atmosphere of a late Sunday night dance in confined quarters, loud music and plentiful alcohol, is to engage in a punch up. But that evidence was not given. Knight DCJ (who conducted the trial) was, and this Court is, obliged to draw upon nothing more than commonsense, without the benefit of expert testimony as to the standard of reasonable care required in the security industry and expected of persons doing the work which Mr Prodanovic was employed to perform. The proper approach to the question before the Court was explained by Mahoney JA in Rogers v Whitaker (1991) 23 NSWLR 600 at 603 - a decision later affirmed by the High Court of Australia: "... In earlier times, perhaps, the matter was or could have been dealt with more directly and more simply. In negligence cases, the courts would identify what it was that the defendant was alleged to have done wrong and would then decide whether the doing of that was negligent in that it showed the lack of proper care for the plaintiff's safety: see Minister Administering the Environmental Plans and Assessment Act 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268 at 326-327 and the cases there referred to. However, it is now settled for this Court that what is required in negligence URJ POPOVIC v WOLLONGONG SPANISH CLUB LTD (Kirby P) 3 cases is first the identification of the dangers against which the defendant has a duty to take care and then the determination of whether what the defendant did constitutes a breach of that duty: Wyong Shire Council v Shirt (1980) 146 CLR 40. And the test of whether there has been such a breach is (to state the matter briefly) 'what a reasonable man would do in response to the risk' fat 47-48). But that test is, of course, one of necessary generality. What needs to be determined in each case is whether what the defendant in fact did was such a response: Phillis v Daly (1988) 15 NSWLR 65 at 71-72." In the same case, at 613f, Handley JA drew attention to the principles in the leading case, Wyong Shire Council v Shirt: "\.. The standard of care required to be exercised by a person who is under a legal duty of care to another is governed by legal principles. In Australia the authoritative statement of those principles is to be found in the decision in Wyong Shire Council v Shirt (1980) 146 CLR 40, especially at 47-48, where Mason J said: "... when we speak of a risk of injury as being 'foreseeable' we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable. In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff... If the answer be in the affirmative it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors'." Confining myself to commonsense and ordinary experience, I have come to the conclusion that what occurred here fell short of the standards of care that may be expected of a security officer at a dance venue in Wollongong, such as that offered by the respondent. Relevant to this conclusion are the following facts: 1. The venue, as Mr Prodanovic would have known, was small, crowded and extremely noisy such that, if a brawl broke out, there was a real risk of injury to people in the vicinity, including young and relatively frail patrons such as the appellant; 2. As Mr Prodanovic also must have realized, he was a particularly large man with a great amount of body weight and power. If, in the circumstances of a brawl, he was propelled onto the dance floor his very size and weight, otherwise 4 UNREPORTED JUDGMENTS so advantageous to deter and discourage the risk of unrest, would present a significant danger of injuries to innocent patrons; 3. The venue included a lot of young people of high spirits for whom alcohol was available and specifically a number of young people. Specifically, a number of these young people had earlier been involved in a brawl. This brawl reasonably put Mr Prodanovic on notice of the risk of further trouble; 4. Despite Mr Prodanovic's assertion of "self defence" in "thumping back" a young man who struck him on the face, a proper characterization of his action is retaliation rather than self defence. In other circumstances such conduct might be understandable. But Mr Prodanovic had one purpose and one alone for being present at the dance venue. It was to maintain order, not to become a cause of disorder. There was a special reason for him to avoid disorder because of the risks arising from the propulsion of his huge size; 5. Present in the club at the time of the injury to the appellant were committee men and other employees who could have assisted in removing the offending patron and restoring order without the punch up which the "thump back" caused. In the bad old days of necessary self help, such physical violence might have been understandable. But in modern Australian circumstances to engage in a brawl in such a dance venue was the very opposite of the purpose of Mr Prodanovic's presence. Far from protecting the safety of other patrons (including the appellant) he exposed those other patrons to the special risks of injury; 6. Apart from anything else, it would have been open to Mr Prodanovic to have summoned the police and sought the assistance of his colleagues in the club. Common experience teaches that police can ordinarily be secured within a relatively short time, being now available to answer calls transmitted to mobile cars in constant contact with telephone complaints. At least it is reasonable to assume that this assistance would be available in a city of the size of Wollongong. The police were indeed later called but only after the appellant was injured, a brawl had occurred and Mr Prodanovic himself was hurt by the broken glass. The social function of the law of torts Violence breeds violence. The law of torts is part of the common law of this country. It has developed over the centuries generally to replace self help with the support of the courts acting on rules of the common law fashioned by the judges. It has a function not only to provide compensation to persons who suffer damage and loss. Its other purpose is to lay down the acceptable norms of our society which will be observed, in the theory of the law, in order to avoid the burdens of tort liability. To condone what occurred in this case is to accept a standard for security officers (and "bouncers") which permits them to "thump back" whenever they are struck - even by a young slight person who presents no apparent risk to them. Given the very purpose which such security officers fulfil, and the risks to bystanders who are entitled to their protection, I believe the law does, and should, draw the line at this form of retaliation. Unless it does, the retaliation will breed the kind of response that occurred in this case with risks of serious injury not only to those involved and to innocent bystanders but to the bouncers themselves. I do not regard the standard which the law requires as a counsel of perfection, as Knight DCJ thought it would be. I allow for the natural inclination of retaliation: perhaps especially in a big man used to exerting his authority and unused to being punched by a small, slight man - or indeed, by anyone else. But the big man was there to protect the patrons, not to expose them to risk. The risk of the kind of harm which occurred to the appellant was entirely foreseeable in URJ POPOVIC v WOLLONGONG SPANISH CLUB LTD (Clarke JA) 5 the circumstances described. There were comparatively safer ways in which Mr Prodanovic could have fulfilled those tasks without endangering the appellant. They might have deprived him of the emotional satisfaction of striking the assailant back. But they would have been much more attentive to the real reason that he was there in the first place. To protect, not expose to injury, persons such as the appellant. In my view this is what the standard of care, as it was understood in 1987 (and is today) required. As the security officer fell short of that standard, the appellant was entitled to a judgment against the club. Orders The orders which I would propose are: 1. Appeal upheld; 2. Set aside the judgment entered by Knight DCJ; 3. In lieu thereof, order that the proceedings be returned to the District Court for a new trial limited to the issue of damages; 4. Order that the defendant pay the plaintiff's costs of the first trial; and 5. Order that the respondent pay the appellant's costs of the appeal but have, in respect thereof, if otherwise so qualified, a certificate under the Suitors' Fund Act 1951. Clarke JA The appellant was injured at about 11.00 pm on Sunday 18 January 1987 when she was struck on the back of the head and neck by Mr Prodanovic, an employee of the respondent, while she was dancing on the dance floor of the Wollongong Spanish Club. She sued the respondent alleging that it was negligent in the conduct of the social activity being conducted at the club on that evening. At the trial which took place before Knight, DCJ in Sydney and Wollongong in April and July 1990 she relied on three particulars of negligence which were expressed in terms somewhat different from the allegations of negligence in her statement of claim. The learned trial judge considered each of those heads of negligence and concluded that she had failed to establish her case. He accordingly found judgment in favour of the respondent. During the hearing of the appeal the appellant accepted his Honour's conclusions in respect of two of the heads of negligence relied upon but has submitted that his Honour erred in failing to find that she had made out her case upon the other relevant ground. That ground, as it was expressed in the judgment under appeal, was as follows: "That Mr Prodanovic in punching a patron in retaliation for a blow struck by such patron failed to take reasonable care for the safety of other persons in the immediate vicinity including the plaintiff. " His Honour reviewed the evidence which had been called and made a number of findings of fact. They have not been challenged by either the appellant or the respondent and it is convenient to set them out. They were as follows: "1. That approximately 10.30 pm on Sunday 18 January 1987 a brawl occurred in the upstairs area of the defendant/club involving Mr Prodanovic and two or three other men. 2. That approximately half an hour after such brawl ceased viz: - at approximately 11.00 pm two of the men involved in such brawl were sitting on the top of a table near the bar. 3. That Mr Prodanovic approached such men in order to ask them to get off such table and lent forward to touch one of those men to catch his attention. As he did so the man punched him in the mouth. 6 UNREPORTED JUDGMENTS 4. That Mr Prodanovic then immediately retaliated by punching the man who had struck him whereupon the other man on the table attacked Mr Prodanovic with a broken glass. 5. That Mr Prodanovic defended himself by blocking with his left arm the attack with the broken glass. This resulted in his left arm being badly cut by that glass below the elbow. As Mr Prodanovic blocked the attack on him with the glass he was hit over the head with a chair from behind. 6. That Mr Prodanovic took the chair from his assailant and faced with at least three men commenced to back away from them. As he did so the men followed him with the apparent intention of further attacking him. 7. That as Mr Prodanovic backed away he threw the chair he was holding at the men following him and picked up another chair and again threw it at them. 8. That as Mr Prodanovic backed away one of the men threw a chair at him. 9. That as Mr Prodanovic was backing away he went onto the dance floor and whilst there and in the course of trying to get away from the men who were following him he swung out his arm and unintentionally struck the plaintiff with the back of such arm. 10. That the plaintiff who was in approximately the middle of the dance floor dancing to loud music and who was facing away from the direction in which Mr Prodanovic was coming did not see or hear him approaching and was struck on the back of the head and neck. 11. That at no time did Mr Prodanovic turn and see the plaintiff and at no time did he look where he was going on the dance floor, his attention being on the men who were pursuing him. 12. That on being so struck the plaintiff fell to the floor and whilst there was hit between the shoulders and around the middle of her back. 13. That such second blow was not struck by Mr Prodanovic." In view, however, of the submissions which were made I should amplify a number of the findings. First, his honour says that a brawl occurred at about 10.30 pm. This finding was in accordance with evidence which had been given but when the events which were described as a brawl were examined it transpired that what was involved was a heated argument between Mr Prodanovic and two or three other men which ended when Mr Prodanovic forcibly seated one of the men down. Secondly, that Mr Prodanovic, who was huge man, was an experienced security officer (bouncer) who had worked for the respondent for about eight or nine years at the time of the incident. Thirdly, that there were present at the club, in addition to Mr Prodanovic and, I assume, bar employees, two committee men and a manager. Although the evidence is not entirely clear it would seem that they were either in or near the office of the club which was situated on the ground floor whereas the events with which this case is concerned all occurred on the first floor. His Honour rejected the appellant's claim on two grounds. He said that as the risk of injury to the appellant from further violence resulting from Mr Prodanovic's retaliatory punch was slight, when considered in all the circumstances, it did not involve a breach of his duty to the appellant to take reasonable care for her safety. The respondent sought to support the judgment on this ground but in view of my conclusion in respect of the ground I am about to mention it is unnecessary to decide whether his Honour was correct in this conclusion. The other ground upon which his Honour based his decision was that the retaliatory punch was an immediate reaction by Mr Prodanovic and it was 'a counsel of perfection rather than of reasonableness to require a man who has just URJ POPOVIC v WOLLONGONG SPANISH CLUB LTD (Clarke JA) 7 been unlawfully punched, when performing a task he is employed to do, to consider the safety of persons a considerable distance away in the same room before punching his assailant back'. Counsel for the appellant challenged that finding. He submitted that in retaliating Prodanovic acted in a manner that was not designed or likely to settle the disturbance created by the man who punched him but was, on the contrary, calculated to cause a melee. In support of that submission he pointed to evidence which showed that the man who struck Prodanovic was five feet tall (although his build was unknown) and Prodanovic's own evidence concerning his belief as to the need for him to do all that he could to see that a fight did not erupt. That evidence was given in cross examination and I will refer to it in a minute but in order to set the context I will refer first to evidence which he gave in chief. He said that he moved from the bar where he had been standing talking to people across to a table to ask two male persons to get off it. He leaned across the table to touch one of the men by the hand to attract his attention. He thought this was necessary because there was fairly loud music. As he touched the man he 'copped a smack in the mouth'. In response to a question enquiring "What happened from there?" he said "Well in self defence I returned the punch and a second move came from the second male person with a broken glass". Then in cross examination he said: "Q. And one of the reasons for removing people who are not behaving themselves was because such people might endanger the safety of other patrons minding their own business in the club isn't that right? A. That is correct. Q. Mr Prodanovic, probably the most important reason for removing people who were misbehaving was to ensure the safety of those other club patrons who were minding their own business and seeking to enjoy themselves, isn't that right? A. That is correct. Q. As at January 1987 when you were confronted with a situation that potentially might give rise to a fight in the club and risk the safety of innocent people, I take it that you did all in your power to see that a fight did not erupt between you and the people you had to deal with? A. That is correct. Q. With those considerations uppermost in your mind is that the reason why you returned the punch that was occasioned to you by the five foot fellow sitting on the table? A. Well that is not the reason no. Q. You were in absolutely no fear of your physical well being from this five foot tall fellow sitting on the table were you? A. No. Q. He hit you so you just thumped him back, isn't that correct? A. That is right. Counsel for the appellant submitted that there was no question of self defence. Mr Prodanovic simply responded in kind - it was a case of retaliation and, bearing in mind his understanding of the action he should take to see that a fight did not erupt, the retaliation constituted an unreasonable act and a breach of duty. I respectfully agree with the trial judge that in the circumstances the conduct of Mr Prodanovic in punching the man in return was not in all the circumstances an unreasonable act or a breach of his duty to other persons in the premises. Counsel argued that the last answer I have quoted demonstrated that Prodanovic was not acting in self defence or in accordance with the way in which a reasonably careful security officer would act in those circumstances. One difficulty with the submission is that Mr Prodanovic was not challenged with the suggestion that there was no element of self defence. Nor was he asked why he 8 UNREPORTED JUDGMENTS retaliated in the manner in which he did, nor whether his actions were inconsistent with his duties as he understood them. Further his Honour made no finding as to why Prodanovic did punch the man. In these circumstances I find it difficult to hold, as counsel for the appellant would have us hold, that there was no element of self-defence. If in fact Prodanovic was acting in self defence then, as counsel seemed to accept, it would be hard to describe his conduct as unreasonable. But even if one assumes that there was no element of self defence in Mr Prodanovic's conduct there remains the question whether it has been shown that he acted in a way that a reasonably prudent security officer would not act faced with the emergency which confronted him. There can be little question but that he was faced with a very ugly scene and that his punch was delivered in the heat of the moment. Whether he regarded that conduct as the most effective way of avoiding a violent eruption was not examined. It may be, for instance, that his experience demonstrated to him that this was the most practical and successful response to the treatment to which he had been subjected. The court simply does not know for the matter was not investigated. In those circumstances I do not think there is any proper basis upon which to conclude that he had acted inconsistently with his understanding as to the proper way in which to control violent disturbances. A possible basis for a finding against him might have appeared if evidence had been called from an expert witness who deposed as to the accepted means for responding to the position in which Mr Prodanovic found himself. Such evidence may have furnished a basis upon which there could have been a finding of a departure by Mr Prodanovic from accepted practices or standards. Neither party, however, called an expert witness and the appellant relied solely on the facts found by his Honour as supplemented by the answers which Mr Prodanovic gave in cross examination. In my opinion those findings, when considered in the light of the additional evidence, do not support a finding that Prodanovic acted in a manner inconsistent with his duties and responsibilities as a security officer or that he was unreasonable or breached his duty. I would dismiss the appeal with costs. Sheller JA I have had the benefit of reading the judgment of Clarke JA and agree that the appeal should be dismissed with costs. Appeal dismissed with costs. Counsel for the Appellant: J Graves Instructed by: Leslie E Abboud Counsel for the Respondent: N Canosa Instructed by: Hansons