New South Wales District Court CITATION: Mahon v The Paintball Place Pty Ltd & Anor [2010] NSWDC 124 HEARING DATE(S): 25, 26, February & 21 May 2010 JUDGMENT DATE: 1 July 2010 JURISDICTION: Civil JUDGMENT OF: Levy SC DCJ 1. Pursuant to UCPR r 28.2, order for the question of liability to be determined separately from the issue of damages; 2. Following an ex-parte hearing of the liability claim against the first defendant, verdict and judgment for the plaintiff against the first defendant for assault, with damages to be assessed; 3. Verdict and judgment for the second defendant on the plaintiff's claim against the second defendant; DECISION: 4. First defendant to pay the plaintiff's costs of the plaintiff's claim against the first defendant on the ordinary basis, unless otherwise ordered; 5. Plaintiff to pay the second defendant's costs on the ordinary basis, unless otherwise ordered; 6. Exhibits may be returned; 7. Liberty to apply on 7 days notice if further orders are required. CATCHWORDS: TORTS – negligence – liability determined as a separate question –assault on plaintiff by first defendant – participant in recreational activities – game known as paintball skirmish – liability of first defendant for assault – liability of second defendant occupier and organiser of recreational activities – whether liability excluded – consideration of liability pursuant to Civil Liability Act 2002 Civil Liability Act 2002 LEGISLATION CITED: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 Belna Pty Limited v Irwin [2009] NSWCA 46 Coles Supermarkets Australia Pty Ltd v Tormey [2009] NSWCA 135 CASES CITED: Erwin v Iveco Trucks Australia Ltd [2010] NSWCA 11 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330 Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd [2009] NSWCA 263 Rooty Hill RSL Club Ltd v Karimi [2009] NSWCA 2 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 42 Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 Christopher John Mahon (Plaintiff) PARTIES: Cheyne Daniel Murphy (First defendant) The Paintball Place Pty Ltd (Second defendant) FILE NUMBER(S): 23 of 2008 (Gosford Registry) Mr R Quickenden (Counsel for plaintiff) COUNSEL: (The first defendant did not appear) Mr G Christie, by leave (A director of the second defendant representing the second defendant at trial) Mr I Cullen (Counsel for second defendant for purpose of making final submissions after trial) Nash Allen Williams & Wotton (Plaintiff) SOLICITORS: (The first defendant did not appear) (The second defendant was not represented by lawyers at trial) Middleton (Solicitors for second defendant for purpose of making final submissions after trial) JUDGMENT Nature of the case [1] Background [2] – [5] Procedural history [6] – [9] Issues for determination [10] Overview of evidence [11] – [75] Oral evidence [12] Documentary evidence [13] Review of oral evidence [14] Plaintiff [15] – [36] Mr Christie [37] – [45] Mr Cosgrove [46] – [72] Review of exhibits [73] – [75] Credit findings [76] – [79] Issue 1 – Unlawful assault on plaintiff [80] – [81] Issue 2 – Claimed duty to intervene [82] – [98] Issue 3 – Claimed failure to apply rules of game [99] – [101] Issue 4 – Claimed breach of duty of care [102] – [118] Issue 5 – Alleged contributory negligence [119] – [123] Issue 6 – Causation [124] – [129] Disposition [130] Orders [131] Nature of case 1. In these proceedings the plaintiff claims damages for assault against the first defendant, and damages for alleged negligence against the second defendant. These claims arise from the same circumstances. Background 2. At about 1:00pm on Saturday 2 April 2005, the plaintiff and the first defendant, Mr Cheyne Murphy, who were unknown to each other, were at the second defendant's premises for the purposes of engaging in the commercially operated recreational skirmish game activity known as "paintball." This activity involved the participants cladding themselves in body armour clothing and using military style weapons to take aim and to shoot balls of paint at fellow participants. 3. The plaintiff claims that following a round of this game, the first defendant assaulted him by first grabbing him around the throat with both hands and choking him, then pushing him against an awning, and then proceeding to beat him about the head with closed fists. 4. The plaintiff claims that these events occurred as a result of negligence on the part of the second defendant, the essential allegation being that the second defendant, by its employees, failed to intervene to prevent the disaffected attitude of the first defendant from escalating into an assault upon the plaintiff. 5. In these events, the plaintiff claims that he suffered a series of cerebro-vascular events in the nature of strokes that have caused him brain damage. He consequently claims damages, including damages for loss of earning capacity. Procedural history 6. The proceedings were listed in a running list on circuit in Gosford. The first defendant did not appear or take any part in the proceedings. 7. During the course of the sittings it became apparent that the case was unlikely to be reached. Accordingly, the plaintiff pragmatically acceded to the second defendant's motion for a separate trial on the liability issues. An order to this effect was made pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005. 8. Mr R Quickenden appeared for the plaintiff. The second defendant, which is a corporation, was not represented by lawyers during the trial. A director of the corporation, Mr G Christie, claimed the corporation could not afford to retain lawyers. He sought and obtained leave to represent the company, and did so over the course of two hearing days on 25 and 26 February 2010. The plaintiff took no point concerning the status of Mr Christie as a director : r 7.7 of the Uniform Civil Procedure Rules 2005. 9. At the conclusion of the evidence in Gosford, the proceedings were stood over to Sydney to be relisted for final addresses after the transcript of the evidence became available. Final addresses were delivered on 21 May 2010. On that occasion, Mr I Cullen appeared as counsel for the second defendant for the limited purpose of making submissions as to any liability on the part of the second defendant. Issues for determination 10. The following liability issues arise for separate determination: Issue 1: Whether the plaintiff was unlawfully assaulted by the first defendant; Issue 2: Whether the second defendant was under a legal duty to intervene in the event that an assault occurred between patrons on the second defendant's premises; Issue 3: Whether there was a failure on the part of the second defendant, through the actions or inactions of its employees, to apply the rules of the game, in order to prevent a physical altercation occurring between the first defendant and the plaintiff; Issue 4: Whether the second defendant was in breach of any duty it owed to the plaintiff; Issue 5: Whether there was contributory negligence on the part of the plaintiff and if so, to what extent; Issue 6: Whether intervention of the kind contended on behalf of the plaintiff would have resulted in a causally different outcome in the circumstances. Overview of evidence 11. In the paragraphs that follow I set out a short overview of the evidence given in the proceedings. Oral evidence 12. The plaintiff gave evidence in his own case and called no other witnesses. Mr Christie, who at that time represented, and was a director of the second defendant, gave oral evidence. The only other witness who was called in the case for the second defendant was Mr Ian Cosgrove, a former employee of the second defendant who had witnessed some of the events complained of by the plaintiff. Within the oral evidence there were conflicts of fact as between the plaintiff on the one hand and Mr Cosgrove on the other. This conflict raised credit issues which required resolution. Documentary evidence 13. Limited documentary evidence was tendered on the issue of liability. This comprised a waiver or release form that the plaintiff had signed : Exhibit "A"; a diagram of the layout of the premises where the incident occurred : Exhibit "B"; a diagram of the playing fields on the premises : Exhibit "C"; a website printout showing the advertised nature of the business of the second defendant : Exhibit "D", and an incident report provided to the second defendant by Mr Cosgrove : Exhibit "E". Review of oral evidence 14. The paragraphs that follow set out a summary of the salient details of the oral evidence. Mr Christopher Mahon – the plaintiff 15. The plaintiff, Mr Christopher Mahon, was aged 46 at the trial and was aged 41 at the time the events occurred on 2 April 2005. He had received an invitation to attend a 21st birthday party for the daughter of his wife's best friend. That party was to take place at "The Paintball Place", the premises conducted by the second defendant. Before these events the plaintiff had received training as a security guard. He had worked and also trained others in that occupation. 16. The plaintiff stated that he arrived at the premises as arranged at about 9:00am on the morning of 2 April 2005 in the company of about 10 or 12 other people. He stated that he had been at the premises on approximately two previous occasions within the previous couple of years and had previously participated in the paintball activities which were to be conducted on the premises on this occasion. 17. The plaintiff described what he did on this particular occasion. He went to the shed and paid his entrance fee of about $130 to enable his participation in the game. He picked up, read and signed a waiver form which was tendered as Exhibit "A". He also initialled various places on the left margin of that form. 18. The plaintiff proceeded to obtain and don body armour that comprised overalls and a face mask that were issued to participants. The plaintiff then assembled at an area known as the lunch area. He identified this on the plan which was marked Exhibit "B". He identified an area known as the safety zone and the non-safe zone on the exhibit. He was allocated to membership of a team. He recounted being instructed by either Mr Christie or a referee employed by the second defendant, he could not remember which, concerning aspects of the game and safety procedures. He said he was told that whilst in the non-safety zone face masks had to be worn at all times, along with other instructions including calling upon the referee for a "paint check" for the purpose of scoring if there was doubt about whether an opposing team member had been hit by a paint ball during the game. 19. The plaintiff was asked whether anything was said in the course of these instructions in the event that anyone behaved in a threatening manner. His answer was "No, not at all." 20. The plaintiff stated that after being instructed, the assembled group was then split up into teams and allocated weapons. The plaintiff stated that he participated in the first game and had been hit by paint balls on several occasions. He said that after a period of further instruction he and the assembled teams went on to a second playing field. He said that he was able to recognize and distinguish employees of the second defendant from other players because the employees wore yellow vests, carried two-way radios attached to those vests, and also carried cleaning materials to clean the goggles worn by players. 21. The plaintiff described having called a number of paint checks during the ensuing game, towards the end of the game. He stated that he called for a paint check on a particular contestant who was standing behind a wooden tower. He was not able to see the face of that person. When asked by the referee to nominate whom he was seeking to have checked the players said he stated "The big fella behind the tower". The plaintiff explained that being English, and not being adept at remembering names, he frequently used the colloquial term "big fella" when describing or addressing people. I gained the impression from the context of the plaintiff's explanation for his use of that expression, that he was intending to convey the meaning as a term of friendliness rather than with an intention to offend, which otherwise might be the case. 22. The plaintiff stated that after the paint check call he became aware of someone verbally abusing him from his left side. The plaintiff stated that the words used were to the effect of "I'll give you big fella, I'll take you outside", terms which the plaintiff interpreted to mean he might be punched. At this time, a paint check of that person had not yet taken place. It appears that the person the plaintiff alleges had spoken to him in this manner was the person in respect of whom he had called for a paint check. The plaintiff stated that the referee came to him and stated "what's his problem" or "what's that about" to which the plaintiff said he replied "I don't know". The plaintiff stated that he was not able to see the face of the person who had said "I'll give you big fella", nor was he able to see the face of the referee, because both were wearing masks. 23. The plaintiff said that during these events, he realised he had been shot with a paintball. He stood up and walked to the back of the field in order to wait for the next game. At this time he stated that he saw the person who had said "I'll give you big fella" to be some 10 or 15 m distance from him. The plaintiff said that at this time that person said to him words to the effect "You pommy cunt, come out the front I'll give you big fella". 24. The plaintiff stated that in response, he said something like "don't worry about it, it's only a game, you know, don't be stupid". 25. The plaintiff stated that at this time the referee came over to him and said "come out the front and will sort this out". The plaintiff said that at this time the other person involved in the incident, the first defendant, was already walking towards the safety zone. The plaintiff said that he then followed the direction of the referee and he started walking toward the safety zone where he had been told to go, and which was some 80 or so metres ahead. He stated that the referee was walking in front of him and he identified that the first defendant was some 15 m in front of the referee. The plaintiff stated that it took him some 25 seconds or so to walk towards the safety zone. The plaintiff said he was able to see the safety zone because of a see-through type fly screen mesh construction around that zone. 26. The plaintiff said he saw the referee go into the safety zone and proceed to walk for some 12 m or so. The plaintiff said that at this time he was walking and chatting to another game participant whom he apparently knew. He stated that he walked into the safety zone and within a couple of seconds he had placed his gun on the safety rack. He stated that he turned and could see the first defendant sitting on a bench with his overalls tied around his waist, his mask off, with the referee some 2 or 3 ms between himself and the first defendant when he heard the first defendant say words to the effect "Where's the pommy cunt…there he is...". At that time the plaintiff said he was walking through the meshed area. The plaintiff stated that this occurred when he was about 4 m away from the first defendant. 27. The plaintiff stated that whilst he was in the course of taking off his mask, which required him to adopt a semi-bent over position, he turned, he observed the first defendant to have "pushed past the referee" at which time the plaintiff said that the first defendant had "just gone for my throat." The plaintiff clarified this description by saying that he didn't actually see the first defendant push past the referee. It is clear that the plaintiff had assumed that this is what had occurred. The plaintiff further elaborated by saying: "Q. What did you see? A. I saw Murphy walking, I'm not sure if it was running or walking quickly, but it all just happened in a split second and just pounced on me. Q. And what, how? A. He sort of like grabbed me by the throat with both hands. Q. Where were his thumbs? A. Towards the middle of my throat. Q. What did you do if anything? A. I said, I said, I said "What's going on" and I tried to break one of his grips-- Q. How did you do that? A. Pardon? Q. How did you try and break-- A. I tried with an open hand, right open hand to, you know, loosen the grip. Q. Well did your hand grab his arm or hand or? A. No it was just a, just a, it wasn't a grab, it was just like a break, you know-- Q. A push down? A. A push down yes. Q. Were you successful? A. No. Q. How would you describe how he was grabbing you by the throat? A. Very tightly. Q. What happened then? A. He pushed me back into the, the awning, safety awning, the mesh type thing and then he sort of let go with the right hand and then started to punch me with - let go with his left hand and started to punch me with his right hand. Q. With a closed fist? A. Yes. Q. Whereabouts? A. The face and the head. Q. Whereabouts in the face? A. Mouth, nose, forehead. Q. What were you doing? A. I was, I was unable to stand unaided. I was down on one knee. Q. Was he still punching you? A. Yes he was. Q. How many times did he punch your face or head? A. Over six times. Q. What happened then? A. Some people came in and broke it up. Q. Well, was one of those people the referee? A. I don't know. Q. How did they break it up? A. I don't know. Q. You can't remember? A. No. Q. What is your next memory then? A. Next memory is someone had my right arm tucked under my right arm supporting me because I was on, I was on one knee, and just thinking, I had this weird feeling. That's all I can explain. Q. Do you remember having any conversation with any, with a referee after the event? A. No I don't. Q. I just take you back to one or two things. As you walked from playing field number 2 after the referee gave you the direction, and up until you went in the safety zone, did you see the referee use his walkie talkie? A. No not at all." 28. The plaintiff was cross-examined by Mr Christie. The plaintiff said he did not know what had caused the first defendant to address him in the manner he had cited. The cross-examination was limited to specific issues. 29. One such issue was the plaintiff's previous experience as a manager of security services at Beachcomber Hotel at Erina. The plaintiff acknowledged that he carried out such work in hotels in Queensland, New South Wales and in Canberra. He acknowledged that part of his work in that regard was to teach newly qualified security guards how to deal with irate customers and the like. He acknowledged familiarity with a security system whereby a security guard could operate a button on a microphone to allow other security guards to listen in on a conversation and to come and assist with a situation if required. The plaintiff's experience of this system was related to events occurring on licensed premises. 30. The plaintiff explained that his understanding of what the referee had said, namely, "Come on, we'll go outside and we'll sort it out" was that he was being asked to go outside to see what the problem was and if he had a problem with the person he had called "big fella" he "was going to apologise, simple as that (sic)". He further explained that he had no fear of being called outside by the referee in this manner "because the referee was there and I thought he had it under control". He further explained that he understood the situation to be potentially serious, justifying the referee taking both of them out as "this guy was threatening to smash me" which led to the expectation that the referee would take "appropriate action". 31. The plaintiff was cross-examined on the content of a statement that he had given to the police when he was interviewed about these events. The plaintiff acknowledged the statement. There appeared to be a small discrepancy within it, in that he had ascribed to the first defendant the statement "Where's the pommie prick", rather than the actual words he cited in his evidence. For the purposes of resolving the issues arising in the case, I do not consider there to be a material issue arising from these variations. 32. The plaintiff stated that he did not know if the first defendant was sounding aggressive at that time but he said that the first defendant was being loud when he addressed him in the manner cited. 33. The plaintiff denied that the referee simply told him to calm down and that they were going to have lunch, thereby calling a halt to the game. 34. The plaintiff agreed that he had said in his statement to the police that he was placed in a confined space with the first defendant after a dispute had developed between them. He explained that the space to which he was referring, was a place designated, that is, surrounded by fences or screens, benches and bushes. It was common ground that this area was not on the playing field. 35. The plaintiff was cross-examined about aspects of his statement of claim and concerning the formulation of his case. Mr Christie asked the plaintiff a question as to why he claimed the second defendant ought to have removed the first defendant from the premises. The plaintiff responded by expressing his opinion that the first defendant was showing an aggressive attitude toward another player, referring to himself. 36. The plaintiff was unable to say how many actual paint checks he had called on the first defendant. The plaintiff was asked to read a police statement prepared by a witness to the events. The plaintiff was asked a question that cited large portions of the statement. The answer did not adopt all the matters in the question. The plaintiff stated that he could not recall the details, and stated that he had only shot the first defendant on the one occasion, which led to his call for a paint check. Mr Geoffrey Christie - a director of second defendant company 37. Mr Geoffrey Christie was a director of the second defendant company, which he described as a small family business. He had no knowledge of the incident of which the plaintiff complained until he was called to the scene after the incident had occurred. The evidence of Mr Christie was directed to a description of how the game of paint ball was generally operated at the second defendant's site. 38. Mr Christie stated that on the day in question, he had been told that someone had been injured, and that the plaintiff wished to have the police charge the person responsible. He said he sent his leading senior referee, Mr Ian Cosgrove, to see the person who was thought to be responsible for the incident to determine whether there was any obvious sign of injury. That person, whom I infer to have been the first defendant, left the scene. Mr Christie then proceeded to take statements from people who were willing to provide them. He had called an ambulance and spent some time comforting the plaintiff. As a gesture, he offered the plaintiff a free game of paintball, which the plaintiff subsequently took up on another occasion. 39. In cross-examination, Mr Christie explained that at the time of the events in question there were probably between 6 and 8 adult male persons if not more, employed at the premises. Of those persons, he believed that about 7 would have had portable radio devices, including the duty manager. 40. Mr Christie was cross-examined about the training that was given to the second defendant's employees, particularly its referees. He explained that there were no written instructions for the job. He explained that the company had been operating for about 14 years before April 2005 without such an incident having previously occurred. 41. He agreed that in a general sense, a part of the function of the referee was to be concerned with the safety of patrons. He agreed that Exhibit "D", whilst being focused on patrons having fun at the premises, was also concerned with safety. Mr Christie agreed that the exhibit referred to stringent safety guidelines concerning equipment and individual game scenarios. He confirmed that essentially, the game of paintball was a contact sport in which people fired paint pellets at each other, with the aim of scoring a hit, commonly resulting in the experience of pain for the recipient of such a hit. 42. Mr Christie agreed that sometimes verbal altercations between patrons would occur in the course of a game, but all of these had been sorted out on the field, as he believed was the case with this particular verbal altercation between the plaintiff and the first defendant. 43. Mr Christie did not agree with the proposition that paintball, being a contact sport, gave rise to the anticipation that participants may become involved in physical alterations on the field. He went on to acknowledge the facility for taking preventive action in connection with the game of paintball, and in that sense, he said that the second defendant tried to anticipate and make provision for such occasions. In this regard, oral instructions had been given to referees. Mr Christie explained that walkie-talkie radios were issued to the referees to enable them to call for assistance if required. He confirmed that no oral instructions had been given to referees to the effect that aggressive patrons should be asked to leave the premises. He also agreed that no oral instructions had been issued to referees where, in cases of potential physical altercation between patrons, those patrons should be left together to try and sort out the problem. 44. Mr Christie explained that the oral instruction to referees was that they should ring the office in the event of a serious problem and ask the duty manager to attend and adjudicate in the event of a problem. He also explained that he had never had such a call in his experience. He agreed that there had been no communication between Mr Cosgrove and the duty manager, Mr Christie's son, on this particular occasion, before the incident involving the plaintiff and the first defendant had occurred, but he agreed that there had been walkie-talkie communication about this after the incident. 45. Mr Christie outlined and explained the standard procedure for obtaining signatures and initials from patrons on the waiver form before the commencement of a paintball game, as had occurred with regard to this particular game involving the plaintiff. Mr Ian Cosgrove – a former games referee employed by the second defendant 46. Mr Ian Cosgrove, a former employee of the second defendant, was called as a witness in the second defendant's case. At the time of the trial, Mr Cosgrove was an engineer. At the time of the events on 2 April 2005, he was an experienced referee employed by the first defendant. He had completed training to attain his Queen's Scout Award and he had participated in a number of leadership training courses as a scout leader, and in other places of employment. He stated that at the time of the events in question, he had not received any formal training from the second defendant, other than by way of training on the job. 47. Mr Cosgrove confirmed that on the day in question, he had been called upon to adjudicate on a number of paint check calls between two players, whom he later came to know as the plaintiff and the first defendant. He stated that these calls, apparently made by the plaintiff, had been made on about 4-5 separate occasions. 48. At the relevant time Mr Cosgrove was aged 22 years. He was unsure of the age of the first defendant but assumed that he was older than himself. He agreed that at the time, the plaintiff appeared to be aged in his late 30s. 49. Mr Cosgrove denied having said to the plaintiff and the first defendant "Come out the front and sort it out", or words to that effect. Instead, he stated that at the conclusion of the game in question, the players were directed to place their equipment in the holding area and to proceed to go to lunch. He stated, more specifically, that the two players involved in the altercation were spoken to beforehand, and were told that it was only a game and to go with the rest of the group for lunch. 50. Mr Cosgrove said that he had not heard the first defendant say anything and had not heard the words to the effect "Where's that pommy prick" or "There he is". 51. Mr Cosgrove had a slightly different memory to the plaintiff as to where he, the first defendant and the group were standing just before the physical altercation that took place between the two of them. In my view nothing of significance turned on these differing recollections. 52. Mr Cosgrove described the altercation between the first defendant and the plaintiff as having taken place just inside the safety zone. 53. In these events, Mr Cosgrove stated that he saw the first defendant push past him, and over the course of traversing some 4m or 5m in some 10-20 seconds or so, an altercation then occurred between the first defendant and the plaintiff. Mr Cosgrove described those events somewhat sparsely in his evidence in chief, but gave further detail in cross-examination. 54. Mr Cosgrove stated that the plaintiff had earlier called several paint checks in relation to the first defendant and when the plaintiff was asked who was to be checked, Mr Cosgrove agreed that the plaintiff said "The big fellow" or "boy behind the tower" or "big boy". He also agreed that the first defendant had said to the plaintiff something along the lines "I'll hit you for saying that". Mr Cosgrove gained the impression that the first defendant was intending to hit the plaintiff, or at least he was stating that he was going to do so. 55. Mr Cosgrove disagreed with the view that what was being offered to the plaintiff by the first defendant was necessarily a physical assault. The basis of his disagreement was that in his experience, in the context of the game of paintball, it was not uncommon for grown males, in the heat of battle, especially when they had received a game decision they did not like, to say things that may cause agitation. It was for that reason that Mr Cosgrove stated that he did not take the matter any further. He further explained the basis for his belief, namely, that when people get agitated they have been known to make comments from time to time in the context of a paintball hit. 56. Mr Cosgrove agreed that at the time when the first defendant had offered a threat to the plaintiff, he was concerned that the threat would be carried out. He stated that his response to the situation was to the effect of discouraging the first defendant from making a physical threat, and encouraging him to put away his equipment and to go to lunch. He agreed that he had not told the first defendant that it was against the rules of the game of paintball to make physical threats, or that if the threats persisted he would not be permitted to play the game. He also agreed that he did not indicate to the first defendant that he would be calling the duty manager, but he agreed that he could have done so if he felt the need to do so had arisen. He also agreed that he had a walkie-talkie 2-way radio system available to him for that purpose. 57. Mr Cosgrove agreed that the plaintiff had called the first defendant "big feller" or "big boy" persistently over a number of times. He also agreed that he perceived the first defendant to have become even more agitated at this, to the point where he threatened to "smash" the plaintiff. Mr Cosgrove stated that the plaintiff's "big boy questions were taunting" to the first defendant, and this was definitely not assisting the situation. 58. Mr Cosgrove agreed that at this point "alarm bells" were "really ringing then". He stated that at this point, he sent the group on. Although one of his answers on this topic was cut off by the next question, I infer from the context, that what he was seeking to convey, was that he sent the group on to lunch. He agreed that he did not call the duty manager to the scene or alert him. 59. Mr Cosgrove was cross-examined on the notes he had made of the incident when he made his report to his employer. He agreed that those notes did not make any reference to the repeated requests by the plaintiff for a paint check on the first defendant. It was not suggested to him that his evidence on this issue was recent invention. He stated that he did not hear the content of the exchanges between the first defendant and the plaintiff over the entire duration of those exchanges. He could not say whether it was only the first defendant threatening the plaintiff or whether there was an exchange in the other direction, because he had not heard the detail of the entire exchange. 60. Mr Cosgrove agreed that he had not heard the plaintiff issue any sort of physical threat to the first defendant at any time. He also agreed that he had heard the first defendant issue a number of indications of physical threats to the plaintiff. He agreed that those threats included a threat that the first defendant was going to "smash" the plaintiff. 61. Mr Cosgrove stated that when they were heading to lunch, the first defendant was on his own, not talking to the plaintiff, but mumbling to himself as he walked away some distance ahead, whereas the plaintiff was with the rest of his group that was located behind Mr Cosgrove. Mr Cosgrove agreed that he had subsequently told his employer that the first defendant had several times expressed an intention to punch the plaintiff. 62. Mr Cosgrove agreed that his statement to the police indicated that the first defendant had on several occasions made a physical threat to the plaintiff whilst he was in the safety zone. He sought to correct that statement by explaining: "QUICKENDEN Q. You were requested to make a report by your employer, immediately after the incident weren't you? A. Yep. Q. And that's the report you made wasn't it, yes? A. Yes. Q. And you said in that report that Murphy expressed his will to punch Mahon several times? A. On the field, twice on the field. Q. No you said in that report? A. Mm. Q. Didn't you, that Murphy had expressed his will to punch Mahon several times? A. Yeah. Q. And one of those occasions was when Murphy was in the safety zone, wasn't it? A. That was he said something in the safety zone, yeah. Q. One of those occasions at least was whilst Murphy was walking to the gun control area, wasn't it? A. As the group broke up yes. Or as he broke from the group, sorry I should re-word that. Q. Mr Cosgrove with all those threats of physical violence being made by Murphy toward Mahon, why didn't you say something to Murphy about that? A. As I'm sure you can appreciate when the - when he said whatever it was he said outside in the safety area, there was a matter of seconds there, he said something as he brushed past me on his way to Chris, he was a matter of seconds, there was no time to even react to that." 63. Of the incident of assault itself, Mr Cosgrove said that when the first defendant had brushed past him on his way to assault the plaintiff, this occurred in a matter of seconds and there was no time for Mr Cosgrove to react to the circumstances. Beforehand, Mr Cosgrove agreed that he had not told the first defendant to stop making physical threats to the plaintiff. However, he stated that he had said words to the effect "calm down, it was only a game and to get over it". 64. Mr Cosgrove related his general experience of tensions occurring amongst players on the field, and stated it was his experience that once players had taken their masks off, they had generally cooled down without further problems. 65. Mr Cosgrove was specifically cross-examined on the content of oral instructions that had been given to him by his employer as to the circumstances in which to alert the duty manager if any physical threats were made by one game participant to another. In agreeing to the proposition that he had failed to obey that instruction, Mr Cosgrave stated "I was busy dealing with the situation in hand". He agreed that at the time he was dealing with the situation, it was obvious to him, that between the time he had told the first defendant to leave the playing field, and during the time the first defendant was walking back to the safety zone, the first defendant was still agitated. He stated however that he believed the first defendant was going to head up to the lunch area as instructed, but he agreed that the first defendant still appeared agitated. 66. Mr Cosgrove agreed that he had not alerted his co-referee to the physical threats that the first defendant had made to the plaintiff. In this regard he explained: "Q. Well you didn't alert him at all before the incident, did you? A. He was with us when the whole group was together at the end of the game, he was aware of the problem as well, hence I walked up between Shane and the remainder of the group whilst he escorted the majority of the group up he didn't actually see anything that happened outside of the - in the safety zone area, he only brought the group up." 67. Mr Cosgrove stated that he had deliberately placed himself between the first defendant and the plaintiff as part of the process of attempting to manage the situation. He stated that as he approached the safety area he went through the mesh screen in order to approach the first defendant, but didn't get a chance to say anything to him. This was so because it was at this moment that the plaintiff had apparently followed him through the screen into the safety area. It was at this point that the first defendant then proceeded to push past him, and on turning around, he saw that the first defendant was heading towards the plaintiff. 68. Mr Cosgrove agreed that the idea of him watching the first defendant was to make sure that the first defendant didn't make any sudden moves towards the plaintiff. He stated that whilst earlier on, he perceived a risk of an assault, at the time he was approaching the first defendant to encourage him to head out to lunch, he did not think the first defendant was a threat to the plaintiff. Nevertheless, he said that he still kept an eye on him. It was in these circumstances that the first defendant brushed past him in order to go through the screen and to proceed towards the plaintiff to assault him. 69. Mr Cosgrove explained that when he saw the first defendant standing with his mask off, and with his overalls down, this was not an uncommon sight after a paintball game. He was under the impression that the first defendant was waiting for the rest of his friends. 70. Mr Cosgrove explained the incident as follows: "Q. You say you did keep him under your observation? A. I walked straight up to him, he was the first and only person that I can recall seeing outside of the screen and I went straight to him as I came outside the screen to direct him to come up to the lunch area as we do with generally everybody else that waits outside that spot. Q. Well is it correct then that you saw Murphy walk past you toward Mahon? A. I don't think you can appreciate how quickly that happened, but Murphy brushed straight past me in one stride, there was about four steps in the whole action." 71. Mr Cosgrove denied suggestions that after the earlier paint check call, the person behind the tower stated "I'll give you big fella, I'll take you outside and beat the crap out of you". 72. Mr Cosgrove's evidence continued: "Q. Mr Murphy continued to make threats to Mr Mahon? Right? A. Yeah. Q. Mr Mahon said, "Look don't be stupid it's only a game, there's no point about that"? A. No the comments from Mr Mahon were along the lines of, "What's your problem, why don't you mind being called "big boy", what's so bad about being called "big boy"?" It was nothing along the lines of "It's only a game calm down". Q. And Murphy said, "Come on out the front and we'll sort it out once and for all"? A. No, his comment was as per what I've written here. Nothing about going the front, there's nothing I heard about going out the front and sorting it out. Q. And Murphy said, "Come on you pommy cunt out the front"? A. No didn't hear that. Q. You said, "Why don't you both come out the front and we can sort it out"? A. Definitely not. Q. And when you were in the safety zone and Murphy was in the safety zone, Murphy said, "Where's the pommy prick"? A. No." Review of exhibits 73. Exhibit "A" comprised a "Waiver Release and Identification form". The plaintiff signed that form on the date in question. His signature was witnessed by Mr Andrew Cranston. That indemnity form had no provision for, nor could it validly exclude liability for, the wrongful acts of third parties. Relevantly, the form sought to exclude: "… any claim or demand of any kind or institute any proceedings against the Company for any injury damage of any kind or death sustained by or occasioned to me in the course of or incidental to playing the game or arising or resulting directly or indirectly from any action omission, neglect or default on the part of the Company arising or resulting from me being on or near the designated playing field area or arising or resulting from faulty equipment issued to me by the company." 74. Exhibit "E" comprised Mr Cosgrove's post-incident notes. Those notes could not be fairly described as a comprehensive statement. The notes were clearly intended to be an aid to his recollection of events if the need ever arose for him to later recall the events. The important matters that I consider to have emerged from these notes is first, the sequencing of the events, which broadly confirms the plaintiff's account and secondly, the brief description of the assault in the following terms: "… [Mr Murphy] walked past me and grabbed [Mr Mahon] by the collar of his overalls and shoved him by the throat into a shade cloth screen." 75. The notes do not go on to describe the subsequent physical assault and punching that was described by Mr Mahon. However, I do not regard the absence of that further detail as being contextually significant, nor do I regard it as being in any way a cause for doubting the plaintiff's account of the events. Credit findings 76. I formed the view that all the witnesses who gave evidence endeavoured to truthfully relate their evidence concerning what they believed they had seen during the relevant events. In my view the differences between the factual descriptions of the witnesses related to differing perceptions of events. 77. However, there were some variations in the accounts given by the plaintiff and Mr Cosgrove concerning the events in question. In this regard, I prefer the accounts given by Mr Cosgrove to the accounts given by the plaintiff where these accounts differ, because Mr Cosgrove's account was aided by a contemporaneous note he made at the time. Whilst it might be said that Mr Cosgrove had a relevant interest in the proceedings in that he was giving evidence for his former employer and was therefore not an independent witness, I discount that factor as I consider his evidence was, more probably than not, correct and was recounted more accurately than that of the plaintiff, who had been through the trauma of a vicious assault. 78. Specifically, I accept as correct Mr Cosgrove's denial that before the assault had taken place, he had invited the plaintiff and the first defendant to go "out the front and sort it out", meaning for the plaintiff and the first defendant to have a fight off the premises. Similarly, I also accept his evidence that he had not heard the first defendant say to the plaintiff words to the effect "I'll give you big fella, I'll take you outside and beat the crap out of you". 79. In the paragraphs that follow I set out my findings on the issues calling for decision in the proceedings. Issue 1 – Unlawful assault on the plaintiff 80. I accept the evidence of the plaintiff in which he described how he had been seriously assaulted by the first defendant. That assault occurred when the first defendant rushed at the plaintiff, pushed him against an awning or structure, choked him around the neck with his hands and then repeatedly struck and punched him about the face and head. I consider that the assault on the plaintiff by the first defendant was unlawful. 81. In the context of the sporting game of paintball, involving as it did a measure of competition and aggression, it is not difficult to foresee how a degree of disappointment and irritation could arise amongst opposing players, even to the point of flaring of tempers. Repeated name calling such as "big boy" could well be subjectively interpreted by the recipient, the first defendant, as baiting, and could well serve to intensify any feelings of resentment, disappointment, animosity or aggression associated with such a game. However provocative such conduct on the part of the plaintiff might have been in the eyes of the first defendant, it did not justify the retaliatory assault, which was unlawful. Issue 2 – Claimed duty on the second defendant to intervene 82. The plaintiff and the first defendant, who were not known to each other beforehand, entered upon the premises of the second defendant on the conditional terms imposed by the second defendant. The purpose of the entry was for participation in the game of paintball. On behalf of the second defendant it was acknowledged that the game was an organised activity that was to be played according to a set of rules that were agreed to, and the implementation of which was to be supervised by the referees and managerial staff employed by the second defendant. 83. In my view, these circumstances clearly show that the second defendant asserted a significant measure of control over the activities on the premises where the game of paintball was played. In my view, that measure of control to some degree also extended to controlling the behaviour of participants of the game whilst they remained on the premises. That measure of control clearly related to ensuring the rules of the game were being obeyed, insofar as one person was in a position to be able to control the behaviour of another. 84. The foregoing matters are pertinent to determining whether or not the second defendant owed a relevant duty of care to intervene and apply the rules of the game. 85. On behalf of the second defendant, it was claimed that there was no relevant duty of care owed to the plaintiff in the circumstances. That submission was based upon the existence of a waiver agreement signed by the plaintiff at the request of the second defendant. The second defendant also relied upon the stated presence of a sign at the entrance to the premises, which purported to exclude any liability of the second defendant for any harm "howsoever caused even if caused by negligence or breach of contract". The full text of that sign was not in evidence. 86. The second defendant argued that as the game of paintball was a recreational activity, and a warning along the foregoing lines had been given to persons entering the premises, including to the plaintiff, the provisions of s 5M of the CL Act therefore applied so as to exclude liability on the part of the second defendant in this case. 87. I do not accept those submissions for the reasons that follow. 88. In my view it is beyond dispute that the second defendant owed the plaintiff a duty of care as the plaintiff was an entrant onto the premises which were used for a commercial purpose : Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479; Belna Pty Limited v Irwin [2009] NSWCA 46. 89. In this case I consider that it is important to observe that the injuries sustained by the plaintiff were not caused by the plaintiff's participation in the game itself. I consider that the waiver and any warnings relied upon by the second defendant were directed at activities that were part of the game of paintball and were not directed at criminal or unlawful activity perpetrated by others, which was not contemplated to be a part of the game. Instead, I have found that the plaintiff's injuries were caused by the unlawful and rogue behaviour of the first defendant, when the first defendant attacked the plaintiff whilst they were on the second defendant's premises. 90. In my view, the salient distinguishing feature of the circumstances was that at the time the plaintiff was assaulted, he was not participating in a paintball game, as the game had already concluded, and the relevant parties had left the formal playing field to make their way to the lunch area. 91. In my view, notwithstanding the described terms of the warning sign, and because of the general and non-specific terms of the content of the sign as described in the evidence, the second defendant must be assumed to have taken upon itself a duty of care to intervene during a game of paintball for the purpose of ensuring the game was played by the rules, and to also ensure that participants in the game complied with the rules. This was because the manner in which such games ordinarily proceeded, had attendant issues of safety and potential injury to players, as well as having some impact on the amenity of, and enjoyment of, the game by the participants generally. 92. In this regard I consider that the clear object within the rules of the game was for referees and staff to be able to intervene in disputes between participants to safeguard players from foreseeable injury due to any failure to conform to the rules of the game, as well as the additional benefit of promoting the safe enjoyment of the game for participants who acted in compliance of the rules. 93. This is in the context where, as has been submitted on behalf of the plaintiff, the commercial activity on the premises involved competing players roving around the playing field shooting balls of paint at each other with powered guns in order to try to put the opposing contestants out of the game as a result of a hit being scored. In my view, that activity had the very real, inherent and foreseeable potential to stir significant emotion and competitive aggression amongst players, particularly since the evidence disclosed that being struck by a paint ball had the potential to inflict a degree of pain and discomfort in the recipient. 94. I find that it was in these circumstances, that the second defendant recognized a need for the supervised implementation of the rules of the game so as to require that there be no physical contact between the players. In this regard the second defendant provided such supervision through the provision of referees on the field. 95. That position was in effect acknowledged by Mr Cosgrove, who agreed that emotions between competing participants in the game at times became aroused, which in turn raised the prospect that physical confrontation was liable to occur between opposing participants in the game. 96. I do not consider s 5K of the CL Act to have any relevance to the analysis because, although the game of paintball was one that involved significant risk of physical harm to participants, the plaintiff's injuries were not incurred during the course of the game, but rather, due to events that occurred after the game had concluded. 97. Accordingly, I find that the second defendant owed the plaintiff, and the other participants in the game of paintball, a relevant duty to take reasonable care to promote and ensure, within reason, safe compliance with the rules of the game whilst the players were on the field using the equipment and weapons associated with the skirmishing activity known as paintball. 98. This raises the question of whether there was a relevant failure on the part of the second defendant to apply the rules of the game in the circumstances under consideration. Issue 3 – Claimed failure of the second defendant to apply the rules of the game 99. The plaintiff submitted that in the events in question there was a relevant failure on the part of the second defendant to apply the rules of the game. In contrast, the second defendant pointed to the fact that at the time the plaintiff was assaulted by the first defendant, the game in which they had been participating, had already concluded. The second defendant submitted that at that time, there was no occasion or need to apply any rules, as the game had adjourned or had ceased, pending a break for lunch. I accept that submission as a matter of fact. 100. The second defendant pointed to the fact that neither the plaintiff nor Mr Cosgrove had anticipated that the first defendant would become physically aggressive to the plaintiff, and would aggressively turn on him and commence to beat and assault him, although Mr Cosgrove was keeping an eye on the first defendant on this account. In this regard, the second defendant pointed to what was common ground in the evidence, that the first defendant had launched his attack on the plaintiff rather suddenly, which severely limited the ability of the referee present, Mr Cosgrove, from going to the aid of the plaintiff in sufficient time to prevent the attack from occurring. In my view there was no relevant opportunity to apply the rules of the game in the events in question. It follows that there was no relevant failure to apply those rules. 101. This raises for consideration the question of whether an occupier of premises where recreational sporting activity is undertaken, is subject to an obligation to intervene to prevent injury to others from unlawful activity on the part of a person who is otherwise lawfully present on the premises. Issue 4 – Claimed breach of duty of care by the second defendant 102. Having accepted that the second defendant had a duty of care to the plaintiff to take reasonable care for the plaintiff's safety whilst the plaintiff was on the premises, it is necessary to determine whether the scope or content of that duty extended to controlling the unlawful behaviour of the first defendant in order to prevent the plaintiff from being assaulted by the first defendant. 103. The plaintiff has submitted that the fact that a verbal conflict developed between the first defendant and the plaintiff on the playing field in the course of multiple calls by the plaintiff for paint checks to be carried out on the first defendant, gave rise to such a duty. This, together with the fact there were subsequent repeated threats by the first defendant that he would "smash" the plaintiff, gave rise to an argued duty of care to keep the plaintiff safe from the foreseeable threat of harm that was directed at the plaintiff by the first defendant. 104. In my view that submission made on behalf of the plaintiff is flawed for the reasons that follow. 105. First, the second defendant lacked the necessary legal authority to physically restrain the first defendant from the course he had embarked upon in rushing at the plaintiff in order to commence a physical attack upon him. There is no evidence that the first defendant ever consented to a battery upon his person, which was what an anticipatory physical restraint of him by an employee of the second defendant would have necessarily involved. 106. Secondly, the argued concern that the plaintiff contended ought to have motivated Mr Cosgrove to summon the assistance of a manager by means of his 2-way radio is, in my view, a submission driven by a hindsight analysis whereas what is required is a prospective analysis : Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 42 per Hayne J at [105]. When the relevant facts are examined with the required prospective analysis it is plainly apparent that Mr Cosgrove was reasonably entitled to assume that the initial verbal threats issued by the first defendant to the plaintiff had dissipated in time and place when the plaintiff and the first defendant were spoken to by Mr Cosgrove when he urged them to settle down and when he called for the lunch break. 107. At that time the first defendant walked away towards the lunch area. Whilst it might have been reasonably foreseeable to Mr Cosgrove, having witnessed the preceding events, verbal interchanges and threats, that the first defendant may have continued to simmer, brood and harbor some ongoing grievance towards the plaintiff at having the amenity of his game somehow interfered with by reason of the perceived frequency of the paint check calls made by the plaintiff, I consider that the prospect of the plaintiff later being attacked by the first defendant was at all times until just before the attack occurred, somewhat remote. Even so, Mr Cosgrove acted appropriately by keeping an eye on the first defendant. 108. I take this view because the plaintiff and the first defendant had disengaged from their verbal exchanges and had separated themselves from the immediate vicinity of the other, and they appeared to be complying with the request of Mr Cosgrove that they settle down. This is evidenced by the first defendant having gone to the changing area ahead of the plaintiff. This action suggested that the first defendant was obeying the request to walk away from the problem. This was also suggestive of him acting as if he was complying with the call to go to lunch rather than to continue to express a hostile and aggressive attitude towards the plaintiff. Further, he had put away his weapon and he was appearing to change out of his overalls, which was also suggestive of a compliant rather than a defiant attitude. 109. In these circumstances, I consider that Mr Cosgrove was justified in regarding the risk of further physical threat to the plaintiff by the first defendant carrying out his threat to "smash" the plaintiff as sufficiently dissipated and remote so that he did not need to summon the assistance of other staff and managers. In this regard there was no ongoing physical fight, the threats had ceased, the parties were separated by a distance and no blows had been struck. In these circumstances I do not consider it to have been necessary for Mr Cosgrove to escalate his earlier concerns beyond vigilance and to summon help. The parties were adults, they appeared to have settled down, there is no evidence of the influence of any mood altering substances such as alcohol being involved, and the risk of a physical altercation ensuing when it did, was in my view, a remote risk that happened to materialize, as is evident from a hindsight analysis. 110. In reaching these conclusions on the application of general principles, I do not ignore the fact that Part 1A Div 2, ss 5B and 5C of the CL Act must also be taken into any consideration of the circumstances, as those provisions form the backdrop to a liability analysis : Erwin v Iveco Trucks Australia Ltd [2010] NSWCA 11 per Sackville AJA at [81], citing Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd [2009] NSWCA 263 per Campbell JA at [172]. 111. It is well settled that s 5B of the CL Act is a reiteration of the principle or calculus stated by Mason J in Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at [47]-[48]. 112. In applying the Shirt template, I accept that a reasonable person in the position of Mr Cosgrove, in the events leading up to the first defendant's physical attack on the plaintiff, would and ought to have foreseen that there was a foreseeable risk of injury to the plaintiff if the first defendant had acted to carry out his threat to "smash" the plaintiff. That said, I also consider that a reasonable person in the position of Mr Cosgrove would or ought to have assessed such risk to the plaintiff as progressively receding once Mr Cosgrove had admonished the parties to settle down and once he had observed that they were acting in apparent obedience to that admonition, especially when the first defendant left to go to the safety area. 113. In this regard, I consider that by the time that Mr Cosgrove and the plaintiff had approached the area where the first defendant was situated in the lead-up to going to lunch, the magnitude of the risk of the plaintiff being assaulted by the first defendant was reasonably perceived by Mr Cosgrove as being relatively slight in that it was reasonable to regard the prospect of the first defendant assaulting the plaintiff as being a low probability at that time. The parties had disengaged from their verbal interchange and had separated from each other's immediate presence. 114. Further, when consideration is given not only to the remote prospect of an assault occurring immediately after the time the two were told to settle down, I consider it would have been disproportionately burdensome, in comparison to the risk, for Mr Cosgrove to summon assistance before the moment in time when the first defendant actually started his rush towards the plaintiff. Short of having security guards on hand, which I consider to have been disproportionate and unwarranted for the occasion, for supervision of a consensual recreational activity amongst adults, and which did not involve any alcohol, it seems to me that on the evidence, there was very little the second defendant could have done to avoid the plaintiff being assaulted by a determined first defendant. 115. In my view the duty of care resting with the second defendant and arising from its occupation of the premises, and its conduct of the recreational activity of paintball on the premises, did not extend to comprise a duty to prevent the first defendant from carrying out harmful conduct, which in this case consisted of a criminal assault on the plaintiff : Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330, per Gummow J at 337-338 [18]; Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254; Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48. I reject the submission, made on behalf of the plaintiff that the facts of this case were not engaged by the decisions in Modbury or Adeels Palace. In my view the second defendant did not have the requisite degree of control over the activity of the first defendant concerning the contemplated risk of harm so as to attract a potential liability. 116. In my view, the submitted authority of Rooty Hill RSL Club Ltd v Karimi [2009] NSWCA 2, which concerned the activities of intoxicated persons on licensed premises, is of no assistance to the plaintiff's claim in this case. 117. Further, in considering whether or not there was a breach of a duty of care by the second defendant in connection with the observed aggressive behaviour of the first defendant, I consider that due regard must be had to the judgment made by Mr Cosgrove not to call for managerial assistance as the parties had separated and the immediate risk of an assault had receded. It was open to Mr Cosgrove to make a judgment along those lines : Coles Supermarkets Australia Pty Ltd v Tormey [2009] NSWCA 135 per Ipp JA at [49]. The fact that a hindsight review shows that Mr Cosgrove may have misjudged the risk of a subsequent assault of the plaintiff by the first defendant, should not in my view be characterised as a breach of duty of care on his part. 118. I therefore conclude that there was no relevant breach of a duty of care on the part of the second defendant. Issue 5 – Contributory negligence 119. The second defendant argued that in the event of a finding in the plaintiff's favour on the question of breach of duty of care, a finding of contributory negligence should be made, calling for an assessment at 100 per cent, so as to defeat the plaintiff's claim : s 5S CL Act. 120. As a consequence of my earlier findings, the issue of contributory negligence does not arise. However, to allow for the possibility that my primary findings may be found on appeal to have involved error, I propose to briefly deal with the defence of contributory negligence raised by the second defendant. 121. The conduct of the plaintiff that is said to have amounted to contributory negligence is said to have been the act of taunting the first defendant, and not apologising to the first defendant when it became apparent that he had taken offence at being addressed with "big fella" type taunts, and then allowing physical contact to occur. 122. I reject the latter argument concerning physical contact, consistent with my finding that it was the first defendant and not the plaintiff, who initiated the physical contact that amounted to an unlawful assault. 123. I also reject the argument that taunting and the absence of an apology amounted to contributory negligence because the form of oppositional sledging in which the plaintiff had engaged, was to be expected in a competitive activity such as paintball. In my view, in those circumstances, contributory negligence does not arise. Issue 6 - Causation 124. There is no doubt that in the factual sense, the first defendant's attack on the plaintiff caused the plaintiff to suffer injury. However, the onus is on the plaintiff to establish legal causation : s 5E of the CL Act. In these circumstances the plaintiff must show that the negligence complained of was a necessary pre-condition for the occurrence of his injury and that the scope of liability is appropriately extended to the harm so caused : s 5D(1) of the CL Act. 125. In my view the plaintiff has failed to discharge the onus for establishing legal causation. This is because in my assessment the first defendant's conduct demonstrated that he was determined to attack the plaintiff as a result of his perceptions and interpretations of the plaintiff's earlier conduct in calling for paint checks and as a result of the plaintiff's "big fella" type taunts which were directed at the first defendant and which had apparently struck a negative chord with the first defendant. 126. In those circumstances the first defendant appeared to have either picked his moment to carry out his assault on the plaintiff, when there was no barrier to him making aggressive contact with the plaintiff, or alternatively, when the sight of the plaintiff caused a recrudescence of negative emotion in him such that he was quickly moved to attack the plaintiff on seeing him, notwithstanding that he had earlier walked away from a confrontation. 127. Either way, I do not consider it to be reasonable or appropriate to extend the scope of the duty of care residing with the second defendant to accommodate those circumstances, in the context of a recreational game of sport where some degree of friendly, oppositional or competitive banter or sledging was to be ordinarily expected. I do not consider that there was any material contribution from any act, neglect or default on the part of the second defendant that contributed to the attack on the plaintiff by the first defendant. 128. In the context where the participants in the game were in attendance at the premises in order to enjoy themselves rather than expose themselves to the risk of an assault, I do not consider that it would be reasonable to impute to the second defendant a liability in respect of the criminal actions of the first defendant, in circumstances where the second defendant had no effective means of coercion or control over any of the first defendant's mal-intentions in that regard : s 5D(4) of the CL Act. 129. Accordingly, in my view the plaintiff has failed to establish legal causation. Disposition 130. I have concluded that the proceedings brought by the plaintiff against the first defendant should succeed. I have also concluded that the plaintiff's claim against the second defendant should be determined in favour of the second defendant. I have concluded that costs should follow the event in each instance. Orders 131. I make the following orders: (a) Pursuant to UCPR r 28.2, order for the question of liability to be determined separately from the issue of damages; (b) Following an ex-parte hearing of the claim against the first defendant, verdict and judgment for the plaintiff against the first defendant for assault, with damages to be assessed; (c) Verdict and judgment for the second defendant on the plaintiff's claim against the second defendant; (d) First defendant to pay the plaintiff's costs of the claim against the first defendant on the ordinary basis unless otherwise ordered; (e) Plaintiff to pay the second defendant's costs on the ordinary basis unless otherwise ordered; (f) Exhibits may be returned; (g) Liberty to apply on 7 days notice if further orders are required. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.