WATERS v WINTER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SHELLER, POWELL and STEIN JJA 28 May 1998, 9 June 1998 [1998] NSWCA 254 DAMAGES — assault — whether sufficient evidence of identity of assailant NEGLIGENCE — duty of care — reasonable foreseeability — lack of evidence to assess extent of duty WATERS v WINTER and THE UNIVERSITY OF NEW ENGLAND On 20 November 1986, Mr Waters was seriously injured in an incident on the campus of the University of New England. Mr Waters sued Mr Winter for damages for assault and the University for negligence. While stating that there was no direct evidence of the person who had assaulted Mr Waters the trial judge was satisfied on a balance of probabilities that Mr Winter was liable. Mr Waters failed, however, against the University. He was awarded damages at $94,586 plus interest. Two appeals arose from the judgment: (1) Mr Waters appealed the finding that the University was not liable (40105/96). (2) Mr Winter appealed the finding of liability against himself (40099196). Held: (1) There was no duty on the part of the University to provide professional security guards. It was not reasonably foreseeable that a failure to do so would be likely to lead to harm to Mr Waters or any other student in his position. (2) That the finding of liability against Mr winter was open on the evidence and no error law was demonstrated. Sheller JA I agree with Stein JA. Powell JA I agree with Stein JA. Stein JA These are two appeals arising out of an incident on the campus of the University of New England on 20 February 1986. In this incident Clinton Stanley Waters, the plaintiff in District Court proceedings, suffered serious personal injury. The plaintiff sued Jason Winter for damages for assault and the University of New England for negligence. Before Sinclair DCJ, he was successful against Mr Winter but failed against the University. His Honour assessed damages at $94,586 plus interest. The plaintiff appeals against the finding that the University was not liable. The defendant, Jason Winter, appeals against the judgment on liability against him for assault. THE APPEAL BY WINTER The principal issue in this appeal was the identify of Waters' assailant, there being no direct evidence. Most of the facts of the assault are relatively clear. On 19 February 1986 and extending into the early hours of 20 February, Robb College held a closed function at its premises. Robb College is a residential college within the 2 UNREPORTED JUDGMENTS University campus at Armidale. The nature of the function was a formal dinner followed by a dance for students. Earlier in the month, a retreat had taken place to make arrangements for and organise events to occur in orientation week and later in the year. In attendance was the Master of the College, senior tutors and office bearers of the 'junior common room'. At the retreat, arrangements for the junior common room to hold a dinner and dance were finalised and approved by the Master of the College. Apparently, there was no discussion as to the provision of security for the function. It appears, and there is no dispute, that the 'junior common room' is the College Advisory Committee under Robb College regulations. The organisation of the function was delegated to the Committee. The plaintiff, a senior student in his final year of study, was vice president of the junior common room. Mr Matthew Irwin was a senior student and tutor, resident at the college. As a tutor, he was on the committee. Guy Ross was president of the junior common room. They were all present at the retreat. It appears that these three senior students undertook the supervision of the function, including the role of preventing unauthorised persons from entering. No paid security guards were employed for the function. The dance was held upstairs above the dining room and external access was confined to the main entrance, which led to the foyer of the dining room. At about 1.15am on 20 February the plaintiff was serving drinks at a bar in the foyer. He noticed about six uninvited persons enter the building and start to ascend the stairs. He and Matthew Irwin approached them and asked them to leave. Mr Ross was nearby. The group commenced to leave the building and were followed out by the plaintiff, Mr Irwin and Mr Ross. Although as his Honour found, there was no apparent aggression between the two groups at that stage, it is probable that the plaintiff, Irwin and Ross followed the intruders out to ensure that they left the immediate environs of the College. After the intruders had retreated some distance around the side of the building, apparently on the way back from where they had come, the plaintiff said that one of the group attacked him without warning. The assailant came at him with his feet thrashing around and swinging at him. The plaintiff retreated until his back was up against a parked car. According to the trial judge's finding, the plaintiff attempted to defend himself by crash tackling his aggressor. His Honour found, and it is not challenged, that Waters' attempted tackle was a reasonable reaction to the situation he faced. Unfortunately, for the plaintiff, in the process his foot slipped on the grass, his left shoulder shot up and he fell to the ground in excruciating pain. The plaintiff was unable to identify his attacker. Mr Irwin's evidence was reasonably consistent with that of the plaintiff. He said that after the group of intruders left the premises, one male member threw a can of beer in the direction of him and the plaintiff. He saw the plaintiff approach a man in the group and speak to him. He then saw that person attack the plaintiff, kicking and punching him. The plaintiff retreated back into a parked car, then moved forward and tackled his attacker and they both fell on the ground. Mr Irwin pinned the man to the ground. When he was allowed to stand up, he tried to attack Mr Irwin, who retaliated. The young man was knocked to the ground with a bleeding nose. Mr Irwin was also unable to directly identify the attacker. URJ WATERS v WINTER (Stein JA) 3 The version of Mr Winter was different. He was a student of the Australian National University visiting friends in Armidale. He was invited to a barbecue at the university held at the Earl Page and Austin Colleges. This was adjacent to Robb College. He had been drinking alcohol from between 5 and 6 pm, but said he was not intoxicated although 'fairly mellow'. After the barbecue ended, he and a group of seven or eight persons walked over to Robb College to see what was going on. He denied that he was carrying a beer can. He had not met the other members of the group before that night. They entered the Robb College building. The group was approached and asked to leave. They left and retraced their steps. He saw no fighting outside the building. After walking about 20m from the entrance, he heard a noise behind him, turned and was struck on the nose by someone he cannot identify. He fell to the ground and was pinned down. His nose was bleeding profusely. He stopped the flow of blood with his T-shirt and left the area. He did not recall being knocked down a second time nor recall attacking anyone. Robert David gave evidence in the defendant's case which, in its detail, varied significantly from that of the plaintiff, Mr Irwin and the defendant. This caused his Honour to 'discount' his evidence. Mr David said he had attended a party at Austin College which concluded about lam when a group of eight of them went looking for another party. They went to the courtyard outside Robb College where they were subjected to abuse from students on the balcony, some of whom threw beer cans at them. Neither he, nor any member of the group, entered the building. As they were leaving, he heard a scream, turned and saw Jason Winter being crash tackled by another man. Jason Winter was assaulted by the man and was bleeding. He (David) did not assault the plaintiff. He agreed that the incident occurred near a parked car. Judge Sinclair commenced his assessment of the witnesses by saying: I did not observe anything in the demeanour of any of the witnesses to suggest that the evidence they gave was not true to the best of their ability. I am inclined to the opinion that ten years after the event the evidence adduced in the courts of this hearing may not disclose the complete picture as to what occurred at the relevant time in the vicinity of the entrance to Robb College that night. (AB 293) Counsel for the appellant, Winter, sought to highlight his Honour's finding on demeanour. While demeanour is important in assessing the evidence of witnesses, a court is required to look further in assessing where the truth lies between conflicting evidence. What his Honour was saying was that the demeanour of the witnesses in giving their evidence did not assist him in resolving the conflict. His Honour's judgment continued by referring to some important and largely uncontested facts. He noted that the incidents described by the witnesses occurred in the same place, in the vicinity of a parked car and near the position shown on a photograph in evidence. It was on the route expected to be followed by persons returning to Austin College from Robb College. His Honour could have added that all witnesses were more or less agreed on the time that the incident occurred. Turning to the vexed issue of identity, his Honour correctly stated that the plaintiff bore the onus of proof. Noting that there was no direct evidence of identity, the judge said that he was conscious that Mr Winter was the only outsider and that 'there is a tendency for persons of a particular group or association "to close ranks" when an incident such as this occurs'. Counsel for Mr Winter is critical of his Honour's statement in this regard, although it is 4 UNREPORTED JUDGMENTS difficult to understand why. It is a statement in favour of the appellant. That, I think, is made plain by the very next word used by his Honour - 'nevertheless'. His Honour found that he was comfortably satisfied that it was Mr Winter who had attacked the plaintiff in the manner alleged. His Honour 'discounted' the evidence of Mr David because part of his account was inconsistent with all of the other witnesses, including the defendant. He accepted the evidence of Mr Irwin, describing him as a 'most reliable witness'. The injuries suffered by the plaintiff and Mr Winter were consistent with the account given by him and Mr Irwin. Further, there was no evidence that Mr Winter was involved in any incident other than that described by them. His Honour said that the evidence suggested that the defendant was probably intoxicated whereas the plaintiff was not so affected. He accepted the plaintiff's evidence. The thrust of the attack on the judgment is that his Honour did not ask himself a crucial question. That is, was it possible that they were all telling the truth and that there were two incidents and not one? It follows, in the submission of Mr Rayment QC, that the judge never assessed or indeed rejected the two incident version. Tam unpersuaded that this submission has any cogency. Although it is said that the two incident version was put by counsel in addresses, it may be noted that no questions were asked of the plaintiff, Mr Irwin or Mr David to this effect. Nor was the defendant's evidence explicit in suggesting that there was more than one incident. From a reading of the reasons for judgment, it appears that his Honour expressly, or by implication, found that there was but one incident. As I have recounted, the judge said that there was no evidence that the defendant was involved in any other incident. Counsel for the appellant criticises this finding but it was open to his Honour to interpret the defendant's evidence as relating to the same incident. In this regard, there was the evidence of the plaintiff and Mr Irwin, whom he accepted. There was evidence that the incident complained of took place at the same place and time as that described by Mr Winter. The evidence of the plaintiff, Mr Irwin and even Mr David, is consistent with a crash tackle by the plaintiff on his attacker. The evidence of Mr Winter is different, although it is somewhat equivocal as to the nature of the attack upon him (AB 164 Q). It was more than open to the judge to find as he did. Indeed, the evidence in favour of the one incident thesis is ample and far outweighs the evidence supporting the two incident version. Also, it may be said that two bloody noses at or about the same time is highly unlikely, given that none of the approximately dozen people present reported more than one. A review of the evidence leads me to conclude that the two incident version is so far fetched as to entitle its outright rejection. It follows that the appeal by Mr Winter should be dismissed with costs. THE APPEAL BY WATERS The plaintiff bed claimed that the University by its employee, Dr Irvine, the Master of Robb College, was negligent in failing to ensure that properly trained security guards were employed to prevent entry into Robb College grounds of outsiders who were likely to endanger the safety of students attending the function. The university denied that it was under such a duty of care. His Honour's conclusion was: URJ WATERS v WINTER (Stein JA) 5 In my opinion the relevant factors to be taken into account in deciding whether or not a duty of care was imposed on the University depends upon a consideration of the relevant degree of proximity between the University and the plaintiff student. Whether there was an inherent foreseeable risk of injury in the circumstances that eviction of a trespasser in the particular circumstances may lead to violence unless properly handled by professional security people and whether the University was vicariously liable for any negligence on the part of the Master of the college. Whilst I accept that the University is bound by a general duty of care towards its students to protect them from a risk of injury of which it is aware or ought to be aware and that the Master of the college was primarily responsible for the welfare of the students in the college I am not persuaded either that the Master was guilty of negligence in allowing this particular function to proceed without the provision of paid security staff nor that there was an independent duty of care imposed on the University to ensure that such protection was provided at the relevant time. (AB 299) Counsel for the appellant Waters submits that his Honour was in error in finding that there was no relevant duty of care. It is submitted that the existence of the duty is supported by the circumstances that the University is responsible for the plaintiff's welfare as a student; the Master gave approval for the function and the assault by an uninvited intruder at the college function was a reasonably foreseeable risk against which the University should have taken adequate precautions. Such precautions were the employment of paid professional security guards. It is claimed that the existence of the duty is supported by a number of facts: «In excess of 200 students were present at the function, including 126 first year students. ¢ Alcohol was available at the function into the early hours of the morning. * Other residential colleges were nearby. * There were no gates or fences to Robb College. « The presence of the function, noise from the music and flashing lights, would have attracted attention and the potential for uninvited intruders. * The function started at 6pm and was to continue to lam. * At other Robb College functions, security guards had been employed. On behalf of the University, it is submitted that it was under no duty of care of the kind contended for by the plaintiff. This was because it was not reasonably foreseeable that a failure to arrange such security would be likely to cause harm to Mr Waters, or someone in his position. On behalf of the University, Mr Nicholas QC submits that there was an absence of evidence to enable the assessment of the extent of any such duty, its reasonableness, practicality or effectiveness. He further submits that the evidence is persuasive that no duty of care, as contended for by the plaintiff, arose. I think that the submission is correct and his Honour's conclusion was right. The function was a closed one, limited to students of the college and ex-students who had moved into houses in town. It was in the nature of a 'thank-you' to those who had worked hard cleaning the college. The function was not advertised. The retreat approved the proposed function and delegated its organisation to the office bearers of the junior common room committee. These included senior students and tutors, such as the plaintiff and Mr Irwin. Security was not discussed at the retreat. It was left to the organising committee, which did not request the University to provide security. The President of the Committee, Mr Ross, Mr Irwin and the plaintiff, the Vice-President, were to supervise the function, 6 UNREPORTED JUDGMENTS including if necessary ensuring that intruders were excluded. There was only one point of entry to the premises. Security had never been contemplated for closed functions before (AB 125U to 126 Q), although it had been for open functions such as the College ball. Within the University, a Yeoman Bedell was responsible for overall security. The plaintiff was aware of directions that the Yeoman be called in the event of intruders. The Yeoman was not called upon to assist with security. Mr Winter was one of a group of people who had not been invited to the function but entered the college premises at about 1.15am on 20 February 1986. Mr Irwin and the plaintiff asked the group to leave and they did, apparently without much fuss. They were followed out by the plaintiff and Messrs Ross and Irwin, when an unexpected, unprovoked and spontaneous assault took place on the plaintiff. It is difficult to comprehend how the employment of professional security officers would have lead to any different situation. It is also difficult to conceive that such an assault could have been reasonably anticipated by the university. In my opinion, the duty of care contended for by the appellant, that is, the failure to provide paid professional security guards, did not arise. The facts make it abundantly clear that it was not reasonably foreseeable that a failure to provide paid professional security guards would be likely to lead to harm to the plaintiff or any other student in his position. One important fact is that there was no evidence that any problems had been encountered at previous closed functions or that there was any apprehension, warning or likelihood of problems with intruders being anticipated. His Honour mentioned this. In my opinion, asking the first question posed by Kirby J in Pyrenees Shire Council v Day (1998) 72 AJLR 152 at 201 (para244) and Romeo v Conservation Commission (NT) (1998) 72 AJLR 208 at 233 (paral17), elicits a negative response. In the circumstances, it is unnecessary to deal with the question of 'proximity' or 'neighbourhood' or breach of duty. I would only add that if the duty contended for existed, the weight of the evidence leads to the conclusion that there was no failure to take reasonable care to protect the plaintiff from foreseeable risk of injury. In my opinion the appeal should also be dismissed. The orders I propose are as follows: 40105 of 1996: 1. Appeal dismissed 2. Appellant to pay the costs of the second respondent. 40099 of 1996: 1. Appeal dismissed. 2. Appellant to pay the costs of the first respondent. Counsel for the appellant (40099/96): B Rayment QC/M Murphy Solicitors for the appellant (40099/96): Shaw McDonald Counsel for the appellant (40105/96): I G Harrison SC/C J Callaway Solicitors for the appellant (40105/96): Gillis Delaney Brown Counsel for the respondent one: I G Harrison SC/C J Callaway URJ WATERS v WINTER (Stein JA) Solicitors for the respondent one (40099/96): Gillis Delaney Brown Solicitors for the respondent one (40105/96): Shaw McDonald Counsel for the respondent two: W H Nicholas QC/M T McCulloch Solicitors for the respondent two: Ebsworth & Ebsworth