New South Wales District Court CITATION: Belinda McNally v Douglas Spedding AND Nicole Nobles v Douglas Spedding [2006] NSWDC 113 HEARING DATE(S): 21 November 2005 - 25 November 2005 JUDGMENT DATE: 19 June 2006 JURISDICTION: Civil JUDGMENT OF: Neilson DCJ at 1 DECISION: 10455/2001 McNally v Spedding - Verdict and Judgment for the plaintiff against the defendant. Defendant to pay the plaintiff's costs. Liberty to apply for any additional or ancilliary orders; 10456/2001 Nobles v Spedding - Verdict and Judgment for the plaintiff against the defendant. Defendant to pay the plaintiff's costs. Liberty to apply for any additional or ancilliary orders. CATCHWORDS: Liability of hotelier to patron - Patron assaulted outside one part of hotel and her watch stolen - Enters another part of hotel and speaks to manager - Requests assistance - None provided - Leaves hotel - Induced to enter other part of hotel to seek to recover watch - Serious assault by gang of offenders - Plaintiffs succeed - Numerous authorities considered - On appeal LEGISLATION CITED: Liquor Act 1982 Casino Control Act 1982 Oxlade v Gosbridge Pty Ltd (unreported, Court of Appeal, 18 December 1998, 40006/97; BC 9807725) Bragg v RSL Henley and Grange Sub-Branch Inc [2003] SASC 226 Blatch v Archer (1774) 1 Cowp 64, 98 ER 969 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91 Public Transport Corporation v Sartaric [1997] 1 VR 168 Guildford Rugby League Football and Recreational Club Ltd v Coad [2001] NSWCA 139 CASES CITED: Ashrafi Persian Trading Co Pty Ltd t/as Roslyn Gardens Motor Inn v Ashrafinia [2001] NSWCA 243 Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447 South Tweed Heads Rugby League Football Club Ltd v Cole (2002) 55 NSWLR 113 Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469 Proprietors of Strata Plan 17226 v Drakulic (2002) 55 NSWLR 659 Lanahmede Pty Ltd v Koch [2004] SASC 204 TAB Ltd v Atlis [2004] NSWCA 322 T. Wagstaff v Haslam [2006] NSWSC 294 Preston v Star City Pty Ltd [1999] NSWSC 459 Belinda McNally (Plaintiff) PARTIES: Nicole Nobles (Plaintiff) Douglas Spedding (Defendant) FILE NUMBER(S): 10455/2001; 10456/2001 P.A. Beale (for McNally) COUNSEL: C.T. Barry QC and E. Chrysostomou (for Nobles) A.M. Colefax SC and P.T. Newton (for Spedding) Stuart McDonald & Associates Solicitors (for McNally) SOLICITORS: Pitcher Walton & Co. Solicitors (for Nobles) Colin Biggers & Paisley Solicitors (for Spedding) JUDGMENT HIS HONOUR: A. BACKGROUND 1 Each of the above plaintiffs was bashed and injured on premises known as the Bald Faced Stag Hotel, Parramatta Road, Leichhardt in the early hours of Sunday 18 October 1998. There is no dispute that the defendant, Douglas Spedding, was the licensee and occupier of that Hotel at all relevant times. 2 The evidence before me establishes that these actions were initially referred to an arbitrator. They were then heard by Finnane J who, on 12 September 2003, gave a verdict and judgment for the defendant in each action. In case the matter went further, his Honour assessed the damages of each plaintiff. He assessed Ms McNally's damages as being $64,340 and Ms Nobles' damages as being $430,362. The plaintiffs appealed to the Court of Appeal and were successful: [2004] NSWCA400. The Court of Appeal (Sheller JA, Pearlman AJA and Windeyer J) set aside the orders made by Finnane J in favour of the present defendant and ordered a new trial in this Court limited to liability. Leave to appeal to the High Court was refused on 27 May 2005: [2005] HCA Trans 367. The re-trial took place before me between 21 November and 25 November 2005, when I reserved my decision. It has been agreed that if the plaintiffs be successful, that judgments will be entered in their favour for the amounts assessed by Finnane J together with interest on each amount at 9% per annum from 13 September 2003 to the day of this judgment. 3 As will be clear to anyone who reads the decision of the Court of Appeal to which I have referred and these reasons for judgment, the evidence presented to Finnane J on liability and that presented to me are quite different. Necessarily, the factual arguments put to me must have been different to those put to Finnane J. In particular, the defendant called no oral evidence before me and tendered no witness statement other than a statement made by Ms Nobles to the police on 6 December 1998. B. THE RELIABILITY OF THE EVIDENCE 4 Oral evidence was adduced by the plaintiffs from Ms McNally, Ms Noble, Mr Scott Drennan and Senior Constable David Hilton Gooley. There was no suggestion made that the evidence of the Senior Constable was in any way unreliable. However the defendant submitted that the evidence of the plaintiffs, on contentious matters, lacked credibility and an attack was made on the creditworthiness of Mr Drennan. The following matters need to be considered: i) Between the occurrence of the events in question and the giving of evidence before me, seven years had elapsed; this is a very lengthy period of time in which one would expect memories to dim, to become more unreliable; ii) however, in the case of the plaintiffs, they did need to recall the events in question from time to time thereafter and this would tend to keep the memory alive; circumstances leading to the recall of memory include: giving histories to medical practitioners, giving statements to the police, giving instructions to legal practitioners, giving evidence to an arbitrator, giving evidence to Finnane J and preparing to give evidence before me; iii) in the case of Mr Drennan, the evidence only indicates his need to recall what occurred when he gave a statement to a lawyer and when he gave evidence before Finnane J, prior to giving evidence before me; iv) for reasons which I shall outline at greater length later, it is more probable than not that each of Ms McNally, Ms Nobles and Mr Drennan was moderately affected by alcohol at the time of the events at the Bald Faced Stag Hotel; unusual, unexpected or startling events they might remember but it is not likely that they would remember particulars or details that would not fit into such categories. These considerations go to the reliability of the evidence, not to honesty of the witnesses. I formed a favourable impression of each of Ms McNally, Ms Nobles and Mr Drennan and I accept that each sought to tell me the truth. What I must guard against are the prospects of reconstruction and rationalisation. 5 Ms Nobles sustained very serious injuries, including a head injury. A CT scan of the brain revealed fractures of the skull, a shallow extra-axial haemorrhage in the left fronto-temporal region and an associated subarachnoid haemorrhage. She was in hospital for about three weeks. She was rendered unconscious in the assault and was still unconscious when the ambulance officers removed her from the hotel (T109.11). The evidence before me suggested a number of weeks of post-traumatic amnesia. Ms Nobles was interviewed by the police on 6 December 1998. At that time she said this: "4. About 9:30pm or 9:45pm we left the [Leichhardt] [H]otel and began to walk home. At this point my memory is a bit of a blur. All I can vaguely remember is starting to venture down Balmain Rd. The next thing I can remember is waking up in hospital. I think this was early November or late October before I even realised where I was." 6 On 9 December 1998, Ms Nobles was assessed by Dr Laurie Miller, a clinical neuropsychologist. His report (Ex.3) contains this history: "Ms Nobles has no memory for the assault that occurred on 18/10/98, but she has been told that she and two friends were beaten and kicked by a number of men in a pub. Her next clear recall she dates to two weeks after the incident, where she woke up on the 11th floor of [Royal Prince Alfred Hospital]". 7 Ms Nobles has subsequently given evidence to his Honour Finnane J and to me of the events on the way to and after reaching the Bald Faced Stag Hotel. How reliable is such evidence likely to be? In addition to the considerations numbered (i) to (iv) above, Ms Nobles' very severe head injury explains a significant loss of memory. Since December 1998 has there been true memory recall or reconstruction? Ms Nobles gave this evidence in chief to Finnane J (Ex.M, p86, lines 5 to 8): "Q: Would it have been about 6 December 1998 that you provided a statement to the Police? A: Yes. Q: Did you at that stage tell the Police what happened? A: From only what I could recall. Q: Right, and since that date has your memory of the events changed at all? A: It's just a little bit clearer from the trip down from Leichhardt to the hotel but otherwise there's no memory after that." 8 That evidence was given after Ms Nobles had told his Honour what had happened at the Bald Faced Stag Hotel. In her evidence before me, Ms Nobles became confused as to the route taken between the Leichhardt Hotel and the Bald Faced Stag Hotel, and in cross-examination admitted that she had "honestly" no memory of the actual route taken between the two hotels. Although Ms Nobles volunteered on one occasion that "[s]ometimes my memory kicks in", I have concluded that it is more probable than not that Ms Nobles' recollection of events at the Bald Faced Stag Hotel is a reconstruction, probably based on the memories of Ms McNally. 9 After 18 October 1998, Ms Nobles and Ms McNally were living together in a loving relationship and it is likely that what occurred on 18 October 1998 was discussed, supplementing Ms Nobles' limited recall. This is perfectly understandable, it is not collusion, but it does explain, in my view, how Ms Nobles now "remembers" what she could not remember in December 1998. C. EVENTS PRIOR TO THE JOURNEY TO THE BALD FACED STAG HOTEL 10 On Saturday 17 October 1998, Ms Nobles had worked as a concrete pumper for Arrow Concrete at Annandale. She returned home at approximately 3pm. She had a "nap". About 4pm or 4:30pm her then "girlfriend", Ms McNally arrived, together with Ms McNally's long time friend, Ms Barbara Maloney. Ms Nobles was then living at 267 Parramatta Road, Leichhardt. The three ladies (nicknamed 'Nic', 'Billie', and 'Bugsy' respectively) then walked to the Leichhardt Hotel, on the north-west corner of the intersection of Derbyshire/Balmain Road and Short Street, Leichhardt. That Hotel was the venue for homosexual women at that time. That Hotel had provided sponsorship to Ms Nobles to compete in the Gay Games, in her sport of playing pool. According to Ms Nobles, the three had arrived at the Hotel around 5pm. Ms McNally estimates the time of arrival at about 4:30pm. Nothing turns on that minor discrepancy. The three ladies consumed alcoholic beverages at the Leichhardt Hotel. 11 The next question is: when did they leave the Leichhardt Hotel? Ms McNally estimated 9:30pm and Ms Nobles estimated anywhere between 9pm and 10:30pm. In my view those were only guesses. One needs to work backwards. The plaintiff's injuries were sustained in what became a brawl at the Bald Faced Stag Hotel. That brawl must have occurred shortly after 1am on Sunday 18 October 1998. The police were called at 1:10am on that day. The ambulance which took Ms McNally to hospital was booked at 1:17am and arrived at the Hotel at 1:24am. This was the first ambulance to arrive at the scene. The police arrived before the ambulance, i.e. before 1:24am. Clearly the brawl erupted shortly before 1:10am when the police were called. The events at the Bald Faced Stag Hotel described by Ms McNally could not have taken any more than half an hour: the earliest they arrived there would have been 12:30am. The proposed route or a usual route between the two hotels would have taken no more than half an hour to walk: the earliest they left the Leichhardt Hotel would have been midnight. It appears to me to be more probable than not that the three ladies left the Leichhardt Hotel about midnight. They would have had been drinking in that hotel for approximately 7 hours. If one accepted the plaintiffs' estimates of the time of their departure from the Leichhardt Hotel, their movements over a period of two and a half or three hours would be "unexplained". However, there is no suggestion that they visited another hotel en route, or a restaurant or café or a friend's house. The only plausible explanation is that they lingered on at the Leichhardt Hotel for longer than they thought. The reason offered for leaving earlier than midnight suggests to me rationalisation: the Leichhardt Hotel generally becoming quiet at 9:30pm when the patrons left to go to nightclubs. This may represent what usually happened, not what actually happened on this night. Accepting as I do that the three ladies stayed at the Leichhardt Hotel for approximately 7 hours, I have no hesitation in finding that they were moderately affected by alcohol prior to leaving that hotel. Ms McNally admitted as much in her statement to the police (Ex.H). 12 The ladies intended to go from the Leichhardt Hotel to Ms Nobles' flat on Parramatta Road. The evidence discloses two routes between those termini: (1) along Balmain Road to Parramatta Road, then east along the northern side of Parramatta Road, (2) along Balmain Road, left into Prospect Street, then right into Hay Street, then to Parramatta Road and then east along that road to Ms Nobles' flat. To me, the map (Ex.K) confirms those two practicable routes and does not suggest any others. I accept that on this occasion the second of the above two routes was taken. My main reason for so finding is that, had the first route been adopted, it is unlikely that what did occur shortly after 1am on 18 October 1998 would have occurred. The Bald Faced Stag Hotel (hereafter "the Hotel") has three entrances from Parramatta Road. The Hotel is on the corner of Balmain Road and Parramatta Road. The entrance closest to that corner (the western entry) is to the bottle shop. The central entry is to the public bar. The eastern entry is the pool room known as "Ground Control". The evidence of the plaintiffs is that they approached from the east i.e. from the direction of Hay Street. As they passed the entry to Ground Control, Ms McNally was assaulted and robbed of her wristwatch. Ms Nobles had gone ahead into the public bar, through the central entry. Ms McNally was to follow Ms. Nobles. If the ladies had approached from Balmain Road, there would have been no reason to walk past the entry to Ground Control, and no opportunity for the robbery to have occurred. Ms McNally says the robbery occurred and I accept her in that regard and in that she is supported by Mr Drennan, who later heard an exchange when the ladies entered Ground Control and Ms McNally sought the return of her wristwatch. The taking of the second route, causing an approach to the Hotel from the east, is more plausible in light of what subsequently occurred. 13 I have already adverted to the evidence of Ms Nobles concerning the route taken to the Hotel. The second route is that to which she deposed to Finnane J (Ex.M p.80 lines 31-33) and she maintained that in cross-examination before his Honour (Ex.M p.99). On the afternoon of 21 November 2005, before me, she deposed to adopt the first route but, first thing on the morning of 22 November 2005, she admitted to error and eventually adopted the second route, with the admission that her memory was deficient. However, in cross examination she did recall walking home on an earlier occasion when an "accident" befell her (T48.51 to T49.14) and I drew the inference that she was recalling an earlier occasion when the second route had been adopted. This lends a little weight to my earlier finding. Again, it must be recalled that the ladies' intention was not to go to the Hotel but to Ms Nobles' flat. If the intention had been to go to the Hotel it seems to me more likely that the first route would have been adopted. D. THE JOURNEY TO THE BALD FACED STAG HOTEL 14 This journey commenced as a journey to Ms Nobles' flat. For reasons just given, I accept that the second route I have described was adopted. At some stage along the way, a decision was made to make a "detour". A decision was made to have a "roadie", another drink "for the road". Ms Nobles' evidence suggests that that was proposed by Ms Maloney (T35.7, T57.27) who "loves a drink". That may be rationalisation or reconstruction but nothing turns on the identity of the proposer of the "roadie". When they reached the intersection of Hay Street and Parramatta Road, instead of turning left to head to Ms Nobles' flat, they turned right to head west to the Hotel. The map (Ex.K) suggests that the distance to the Hotel from Hay Street could not have been great. 15 Ms McNally thought that this journey took "about half an hour" (T13.39). In cross examination it was suggested that it would take approximately 15 minutes to walk between the two hotels, a proposition to which Ms McNally would not assent. She went on to say this: "Q: How long has it taken you? A: On an average stroll 20, half an hour, depends if I stop, have a chat, light a cigarette, it all depends". 16 Accepting that each of the women was moderately intoxicated, I would not have expected them to walk briskly, as the cross-examiner later suggested to Ms McNally, a proposition with which Ms McNally would not agree. However, the map does not suggest that the length of this journey was very great. As I have already indicated, this journey could have taken no more than half an hour; even allowing for a slow pace and short stops. 17 Ms Nobles told me that Ms McNally and Ms Maloney were "pretty slow walkers", but she was a fast walker and she was generally ahead of the other two (T37.33). Ms Nobles also told me that as the three ladies approached the Hotel she was ahead of the other two. More importantly, Ms McNally said that Ms Nobles was slightly ahead of her (Ex.H, para.6) and I therefore accept that as three approached the Hotel Ms Nobles was walking ahead of the other two ladies. E. THE BALD FACED STAG HOTEL 18 The Hotel is on the corner of Balmain and Parramatta Roads at Leichhardt. The intersection is a 'T' intersection. Balmain Road runs from north to south and is the stem of the 'T'. Parramatta Road runs from east to west and is the head of the 'T'. The Hotel is in the north-eastern corner. The Hotel may be described as divided into halves by a wall running north to south. The eastern half is a pool room known as Ground Control. The western half comprises the public bar. In the south-western corner of the western half: i.e. on the very corner of the intersecting roads is a bottle shop. In the south-western corner of Ground Control is a poker machine area, around part of which, at least, was a glass brick wall. Between the two halves of the Hotel is a connecting doorway. That doorway leads from the public bar area open to patrons to the poker machine area. That door is either a glass door or a door containing glass panels. There is no suggestion that the glass was opaque. Ms Nobles suggested that the door was locked or not in use but the inference I drew from the evidence of Mr Drennan was that it was unlocked and could be used as a means of access between the two halves of the Hotel. 19 As I stated at the commencement of these reasons, there is no dispute that the defendant was the licensee and occupier of the Hotel. There is no suggestion that he was present on the evening of 17/18 October 1998. There was a staff of three. Such is the only finding available on the evidence. There was a Mr Jason Spears (or Spiers) who was described as the manager and who, on the evidence before me, was the person in charge of the Hotel on the night in question. There was a young lady behind the bar of the public bar, which was in on the western side of the western half, closest to Balmain road. She might be given the traditional appellation of barmaid. There was a young man in his mid to late twenties behind the bar in Ground Control. The position of that bar is not relevant for current purposes but can be seen in the plan, which is Ex.2. At material times Mr Spears was not behind either bar and the inference, which I draw, is that he was able to move between the two halves of the Hotel. 20 Mr Drennan had some familiarity with this Hotel. He had lived locally for most of his life at Lilyfield, Leichhardt and Stanmore, moving to the Parramatta area in about 1999, after the events now in question. He had met his girlfriend at this Hotel. He would not describe himself as a regular drinker or as a regular patron of this Hotel, but he clearly was visiting it beforehand. He said that on one or two occasions he had observed the presence of bouncers at the Hotel. It is common ground that none was present on this evening. Mr Drennan had seen a number of outbreaks of violence at this Hotel before the evening in question. Before Finnane J Mr Drennan referred to "a few brawls". He went on to give this evidence before his Honour: "Q: You said that you experienced some brawls there previously. A: Yes. Q: Were they of the magnitude of the brawl that you experienced on 18 October 1998. A: Nothing like that, no. Normally it's just people having I guess personality clashes or someone did something wrong and just, you know, these things happen, you know, just like any other bar. Q: So it usually between – usually people you witnessed, were usually between two individuals. A: That night, it was between – Q: Not on that night, the ones you say you witnessed prior to 18 October 1998. A: Yes, just individual people, having a whatever it was. Q: An altercation. A: Altercation, yes Q: And as far as you can recall was those altercations resolved by staff that were working there. A: Yes, I guess yes. 21 The inferences to be drawn from this evidence are: i) outbreaks of violence had occurred at the Hotel in the past, and such was known or ought to have been known by the defendant; and ii) the defendant had, at times in the past, engaged security staff and could, therefore, do so if he wished 22 Present on the evening of the 17/18 October 1998 was a group of young men and women to whom I shall refer to as the "gang". Ms McNally estimated that there were about 15 males. Mr Drennan said that there were "about at least 7 to 10". This group of males was accompanied by "girlfriends", according to Ms McNally. I accept that evidence from Ms McNally as it ties in with details she gave in her statement to the police on 30 October 1998 (Ex.H). The appropriate finding on this evidence is that the gang comprised about 15 persons both male and female. The males in the group can be described, using the politically correct circumlocution, as being of Middle Eastern appearance. They were described by Ms McNally as being between 18 and 20 years old with a distinctive hairstyle and dress, wearing white singlets, chains and crosses. A colourful description of the gang was provided to Finnane J by Ms Nobles (Ex.M p.83) but is likely to be a reconstruction based on stereotypes. They were in Ground Control, playing pool. F. THE FIRST ASSAULT 23 In her statement to the police Ms McNally said this: "6. About 10:15pm to 10:30pm outside the pool hall 'Ground Control' which is adjacent to the Bald Faced Stag Hotel we saw a young Mediterranean male talking on the mobile phone. Nicole said something like "Look, at the yuppie on the phone" she was slightly ahead of us at the time. He said to me "What did you say?" I said, "I didn't say nothing". He said something after that but I could not understand what it was. He then hit me on the left side of my face connecting with my jaw. He hit me with a closed right fist. I fell to the ground. He then kicked me in the stomach about two to three times. He then took my watch off my wrist and went inside the pool hall. Barbara then pulled him off me and picked me up and walked me into the Stag Hotel". 24 Ms McNally told me on oath that the statement was to the best of her knowledge true and correct. I have already found that Ms McNally's timing of this event is improbable. It appears to have occurred shortly after 12:30am. I do accept that the ladies approached the Hotel from the east, so that the first entry which they passed would have been the entry to Ground Control. This entry was a pair of double sliding glass doors activated by a sensor. This entry is set back from the footpath, about one metre. This area is paved with grey tiles which contrast with the black bitumen of the footpath. The inference to drawn from photographs (exhibits D and E) and from the plan (Ex.2) is that this grey tiled area was part of the land on which the Hotel had been erected. The setting back of the entry may have been necessitated by the use of sensor-activated sliding doors. I accept that the young man with the mobile phone was on this grey tiled area and that is where Ms McNally was assaulted. Counsel was very diligent in establishing that this assault occurred on the land occupied by the defendant and was successful in so doing, although, to use the words of Gleeson CJ, "[i]t would be very surprising if these cases are decided by a surveyor": [2005] HCA Trans 367,p.8. Of course, Ms Nobles may have said something more derogatory than "look at the yuppie on the phone". However, whatever was said appears to have been taken as derogatory by the young man who also appears, mistakenly, to have thought that it was said by Ms McNally. In retaliation he assaulted her and then robbed her for good measure. I accept that Ms McNally was assaulted and robbed as she said. 25 It is to be noted that Ms McNally's wristwatch was of significance to her: it was a gift from her parents. This, together with any intrinsic value the watch had and any inconvenience arising from the loss, would motivate her to seek its recovery. THE INTERLUDE 26 Ms Nobles, preceding the other two women, was unaware of what had happened behind her. She entered the Hotel through the central entry, into the public bar. She was ordering drinks. Ms McNally's statement continues: "7. Nicole was inside the pub ordering drinks and when we went inside we told her what had happened. She became angry about it and went and told a person at the pub. I believe that this person was the boss['] son. He was Australian tall, thin, about my age. 8. This man did not seem that interested in our problem, so we just decided to leave". 27 The "person at the pub" to whom Ms Nobles spoke was Mr Jason Spears. Both the plaintiffs believed that he was the defendant's son. However, it was accepted by all Counsel that it was in fact Mr Jason Spears. 28 In her evidence before me Ms McNally said that after the assault she entered the Hotel, the inference being by the central entry, into the public bar. She said that she told Ms Nobles what had happened after Ms Maloney had first spoken to Ms Nobles. Ms Nobles spoke to another person then, but Ms McNally did not overhear that conversation. Ms McNally then said that the next thing to occur was this: " I remember vaguely one of the people that worked there had asked myself to point out what had happened. Not what had happened, sorry, if I'd point out the person who'd done it. And then he vaguely said to me, well, he can't help me either way, so". 29 Ms McNally went on to give this evidence: "Q: The person who was employed at the hotel who had a conversation with you which led you to go and point somebody out. Just tell us what the conversation was and what you actually did? A: Okay. Basically all that was really said was that I'd been assaulted out the front of their premises in front of the pool hall. I asked him if he could assist me. Basically he had said, "No, unfortunately we don't have enough staff, I can't assist you." But he did ask me to show them who they were. Q: What did you do? A: He – I know I looked or walked through somewhere with the gentleman to point out who the person was and then came back and left." She was then asked to whom did she point and she identified a male gang member. 30 The evidence of Ms Nobles on this gives greater detail but, for reasons that I have already given, is likely to be unreliable. In particular she gave evidence about going to the door between the two halves of the hotel, through which Ms McNally identified her assailant. That raised an issue as to whether it was physically possible to identify someone in Ground Control through the glass door. On this, Ms Nobles was challenged before Finnane J and before me. Mr Drennan gave evidence on this issue before his Honour and before me. Before his Honour, Mr Drennan said that there was a glass brick wall around the poker machine area from the ground "almost to the ceiling". This would have made it almost impossible to identify anybody in Ground Control: the plan (Ex.2) and the evidence of Mr Drennan before Finnane J establishes that. Before me, Mr Drennan said that the wall " wasn't complete at the actual time". That raised a secondary issue as to whether Mr Drennan had visited the Hotel since 18 October 1998. He could not remember doing so before Finnane J but did remember doing so when he gave evidence to me. Those issues do not, in my opinion, need to be determined but if it were necessary to determine them, I would determine them against the defendant for the following reasons: (a) As I have already stated, I formed a favourable impression of Mr Drennan and accept that he did his best to tell me the truth; whilst there is inconsistency between that which he told Finnane J and that which he told me, I formed the view that he was deeply reflecting when he gave evidence to me: the significance of what he said earlier may not have dawned on him until later; (b) Mr Drennan's evidence before Finnane J indicates, in places, that he had to come out of the poker machine area to enter Ground Control to see what was happening (Ex.N, p.67) but also indicates that one could see into Ground Control from the poker machine area (Ex.N, p.70, ll 33-38); before me, Mr Drennan said that he could see what was happening from where he was playing a machine (T79, ll 26-38). (c) it would have been very easy for the defendant to have adduced evidence as to when the glass wall was completed, e.g. from the builder who had built it or was building it, the defendant himself, any member of staff, any regular patron, but no attempt was made to do so. 31 The reason why, in my opinion, I do not need to decide those issues is because Ms McNally's evidence is not that she identified her assailant by looking through the glass (panelled) door. She said, "I know I looked or walked through somewhere with the gentleman to point out who the person was" (my emphasis). That is consistent with her walking through the poker machine area to look into Ground Control through the doorway between the poker machine area and the pool room. I accept that Ms McNally did identify her assailant as one of the gang in Ground Control to Mr Spears. I also accept that, antecedent to that, Mr Spears was advised of what happened to Ms McNally. I have no hesitation in finding that Ms Nobles spoke to Mr Spears. The two were known to each other from previous meetings at the Hotel. Ms Nobles had previously danced with him at the Hotel. Human experience indicates that the likely topic of conversation would have been what had just occurred at the entrance to Ground Control. If that had not been raised by Ms Nobles with Mr Spears, why would he ask Ms McNally to identify her assailant? That action is only rationally explicable by Mr Spears' having been informed of the assault and robbery. I also accept that Mr Spears declined to offer assistance because he had insufficient staff to deal with the gang. He must have perceived that the gang members would assist each other if an unwelcome approach were made to one of them. 32 Ms McNally went on to tell me that after she had identified her assailant and help was declined, she and the other two ladies left the hotel, leaving their unconsumed drinks behind. They left through the central entry and turned to the east, in the direction of Ms Nobles' flat. 33 Ms Nobles' evidence in cross examination as to what happened at this time is this: "Q: Was it at that moment, when he said he'd like to help you but he couldn't because of an absence of manpower, that you announced that you were leaving the premises? A :I just told my guy, just sit babe, let's not worry about it, let's just go home. I'll get you another watch. Q: Is it in fact the case that you probably said to Ms McNally, "This is fucked, let's not worry about it, let's just go home"? A: Well, be working in concrete, sir, that's every second word so I could have said FUCK." 34 The statement, which Mr Colefax put to Ms Nobles, is that which she volunteered to Finnane J (Ex.M p.83 lines 41-42) as being probable. The important point, however, is that the cross examiner accepted (and had earlier accepted) that the person to whom Ms McNally identified her assailant was Mr Jason Spears. H. THE MAJOR ASSAULT 35 This part of my reasons might have been headed "The Second Assault" as it was the second assault upon Ms McNally. However, it was the only assault on Ms Nobles. In any event, as the case has been presented and argued before me (although I have not read the reasons for judgment of Finnane J nor any of the evidence before him, other than that tendered to me), Ms McNally's damages flow from this assault rather than from the first. 36 Ms McNally's statement to the police goes on to say: "8. … Barbara then saw the guy who assaulted me and took my watch. She was standing in the doorway of the pool hall and he was standing with a lot of Mediterranean males. She said "We don't want any trouble, can we just have the watch back?" One of them said "If you want it, come inside and get it". 9. The three of us decided to go in and we walked up to the guy who just said "I'm here now, can I have my watch?" He said "I don't know what you are talking about, what watch?" They started talking in their own language. I was then hit on the back of the head with a pool cue. I fell to the ground and then got back up. I tried to hit the man that hit me. The next thing I knew was that I was getting hit by pool cues and then kicked as I was on the floor. I could hear the girls in the pool hall egging them on. They were yelling "Get the dykes". I know Barbara was on top of me trying to protect me. I could not see what has happening to Nicole at that time. 10. Barbara dragged me over to another part of the room and I could see that there was a brawl happening in the pool hall. I could see Nicole unconscious laying on the floor. There was some males who I don't know standing over her trying to protect her and they were getting hit by the other males as they were trying to get to Nicole". 37 In her evidence in chief, Ms McNally gave more detail as to what occurred at the commencement of this action: "A: We walked out from the Stag hotel, turning left onto Parramatta Road and right beside that is the part of the pub called Ground Control and there use to be a bus stop bench there. We were all just talking and then my friend Barbara Maloney, because the doors were retaining, they open, she walked up near it and the doors opened and she called out, "Listen, I was wondering what would be the chances of, you know, giving us the watch back" and they basically said, "Yeah, that's ok, well, come and get it then" so we did. Q: Tell us what happened after that? A: We walked in, myself and Barbara Maloney, that is. Nicole didn't really want to go in but then she followed anyway and then we got to about the second pool table where the gentlemen were and I just walked up to them and said, "Well, I'm here now, may I have my watch" and they said, "We don't know what watch you are talking about" and then from there on I got hit over the head and everything happened from there I did try to protect myself, I did try to get up but he just kicked me back down, so - - Q: What were you hit over the head with? A: I was hit over the back of the head with a pool cue." 38 She went on to tell me that she was walking towards the male who had earlier assaulted her when she was hit from behind by a pool cue wielded by a person unknown to her. She tried to rise but was kicked down to the ground. Ms Maloney sought to cover Ms McNally with her body, but by then a general brawl had erupted. Ms Maloney dragged Ms McNally to the back of the pool room. She looked back towards the entrance and saw Ms Nobles lying on the ground, with a "lot of other people around her". There is no dispute that Ms Nobles was very grievously injured. 39 Mr Drennan was playing the poker machines. He heard two ladies (probably Ms McNally and Ms Maloney) asking male gang members about a watch. He said this: "I remember one of the girls saying something about some kind of sentimental value, can you please give it back to me, I've had it for a long time – yeah, and these gentlemen just kept like sort of palming them off, I don't know, like it didn't matter or something, I don't know". 40 At some stage he came out of the poker machine area "to see what was going on". The argument seemed to carry on for a bit too long and he "could see something was going to happen eventually". This sequence of events is not in the order given by Mr Drennan in his evidence but logic and commonsense indicate such an order. The brawl erupted. Pool balls were being thrown. Mr Drennan started collecting balls and depositing them in the pool table pockets to deplete the supply of ammunition. He was then struck in the head by a pool ball. At page 79 of the transcript, Mr Drennan indicated that the male gang members instigated the brawl. It was one such person who threw the ball which struck him. He also saw the women being pushed and kicked and lying on the floor. 41 There are worrying aspects about the reliability of Mr Drennan's evidence. He estimated that he had been in the Hotel for about two and a half to three hours prior to the brawl. He accepted that the brawl occurred about 1am and then stated that he entered the Hotel about 10pm. He said he had been to dinner with friends but had not consumed alcohol at dinner. He then called into the Hotel. However, he had told Finnane J that he "went there in the afternoon". When that was put to him he became "confused" and then said that he did not remember and then to being vague about time. Later it was put to him that he had told Finnane J that it was "daylight" when he arrived and he agreed that that was the case and agreed that he may have been in the Hotel for about 6 hours. Even at a modest rate of drinking, he must have consumed quite an amount of alcohol and must have been moderately, at least, affected by it. Nevertheless the events surrounding the brawl, to which he deposed, are sufficiently unusual or striking to have stayed in his memory, in my view. Especially is that so considering that he needed medical treatment. A member of the Hotel's staff took him to the Royal Prince Alfred Hospital where butterfly closures were applied to his split eyebrow. 42 Mr Drennan gave some evidence about the role of Mr Spears at the time of the assault and immediately prior to it. He recalled that Mr Spears was in charge that night. Mr Drennan was called by Mr Barry QC, who, with Mr E. Chrysostomou, appeared for Ms Nobles. Mr Drennan was then cross-examined by Mr Beale who appeared for Ms McNally, prior to being cross-examined by Mr Colefax SC who, with Mr P. Newton, appeared for the defendant. During the first cross-examination, Mr Drennan said this: " I remember seeing him because I thought he was going to intervene or try to do something and seemed frightened, he didn't seem like he wanted to go over there, he didn't like – couldn't handle the situation. . . . Q:You said Mr [Spears], he appeared to be afraid of the situation? A:Yes. Q:Did he remain in the room? A:Yeah, because I remember looking over and he was just talking to a couple of locals…" 43 In cross examination by Mr Colefax, Mr Drennan gave this evidence: "Q: Yes. I want to suggest to you that you're quite wrong in your recollection today that Mr Jason [Spears] was present in the Ground Control room whilst the ladies who are the plaintiffs in this case were discussion the claim for the watch with the Lebanese men. Do you agree or disagree? I think you said you disagreed when I was asking the question? A: Yeah - - Q: Do you disagree? A: I don't remember if at the time when they were asking for the watch that Jason was actually present at the time, but he was present at – no, he would've been present. He would've been present, yeah. At one particular time, I don't know – but he was observing from a distance. Q: You could see that, could you, from where you were in the poker machine room? A: Yes, yes. Q: Just in the course of that answer in the one sentence, one minute you had Mr Jason [Spears] present, the next second you didn't. I want to suggest to you that that indicates to his Honour that you don't have a clear recollection today of what took place in the Ground Control room immediately before the assault took place. OBJECTION (BARRY). QUESTION ALLOWED. Q: Would you answer the question, please, Mr Drennan? A: Can you repeat it gain please? Q: I suggest to you that the answer you last gave to his Honour in which you changed your mind in the course of the answer about whether Mr [Spears] was present or not in the Ground Control room, indicates that today, seven years later, you do not have a clear recollection of the events immediately before the assault took place in the Ground Control room? A: I do have a recollection. Q: I am suggesting it's not a clear one? A: It's very clear. I can tell you what I saw and I remember, and that's it." 44 What finding can I permissibly make from this evidence? The second answer recorded to Mr Colefax's questions certainly indicates a lack of memory and then reconstruction. I can infer that at some stage between Mr Drennan's hearing the women asking for Ms McNally's watch and the eruption of the brawl Mr Spears was present in Ground Control but exactly when and what he saw occurring I am unable to say. However, an inference can be drawn, and I draw it, that it was possible for Mr Spears to have been present in Ground Control during the events now being discussed i.e. he was not absent from the premises or called to other duties. That inference can be more readily drawn in the light of his failure to give evidence. The evidence does not disclose any action on Mr Spears' part to interfere with the interaction of the women and the gang. 45 In summary, I accept the following: (i) After the three ladies left the public bar, they turned left to head in the direction of Ms Nobles' flat but, for a reason the evidence does not disclose, tarried for a short period outside the entrance of Ground Control, where Ms Nobles had taken a seat on a public bench. (ii) Ms Maloney saw Ms McNally' assailant in Ground Control, approached the entrance and the sensor-activated sliding doors opened. Ms Maloney asked if Ms McNally's watch could be returned and was invited to "come and get it". (iii) Ms Maloney and Ms McNally entered Ground Control and walked towards the gang, members of which were playing pool. The two women were shortly after followed by Ms Nobles. (iv) A verbal altercation then took place between Ms McNally (and perhaps Ms Maloney) and members about the watch. The altercation became heated. (v) A brawl then erupted motivated perhaps by the perception that these three women were "different": "Get the dykes". That was Mr Barry's submission on the motivation of the gang; it is a distinct possibility but the evidence does not allow me to conclude that it was the motivation for the assault. It my be that the gang members became tired of the ladies' importuning or that derogatory remarks were made during the heated verbal altercation. (vi) In the brawl the plaintiffs sustained their injuries. 46 The aftermath of the brawl can be easily determined. Someone, perhaps a staff member of the Hotel, called the police on 000. At 1:10am Constable Gooley (his then rank) and Constable Semple in a patrol car at Annandale received a radio message and responded. They arrived at the Hotel before the first ambulance, i.e. before 1:24am. Their response time would have been 10 minutes or less. Despite Ms McNally's evidence to the contrary, I am satisfied that the gang had decamped prior to the arrival of the police. In the interim, the ambulance, had been booked at 1:17am when, probably, the significance of the injuries sustained by the plaintiffs had been perceived. The plaintiffs were not the only persons injured in this brawl. I have already described the injury sustained by Mr Drennan. Ex.A, the COPS entry, also indicates that an injury was suffered by an 18 year old man from Drummoyne, who may have been one of those who came to the plaintiffs' assistance. The offenders in this brawl have never been identified and so have not been prosecuted. J. THE MISSING WITNESS 47 Clearly, a potential material witness was Ms Barbara Maloney. She was not called, nor was her absence adequately explained. It is clear from the evidence of Ms McNally and Ms Nobles that each had had a falling out with Ms Maloney. Some little time was spent in evidence in discussing why she was not called and where she might be (McNally, Transcript p.8, pp.21-24, pp.30-31; Nobles, Transcript pp.64-66). However, it is clear that the defendant had a 39 page statement from her, to which each plaintiff had her attention directed (McNally, Transcript pp.24-25; Nobles, pp.66-67, p.70, p.75). That statement was MFI 4. It did not cause either plaintiff to change her evidence. Much was made of Ms Maloney's absence by the defendant. However, there is no property in a witness. If Ms Maloney could have been called by the plaintiffs, she could have been called by the defendant. The defendant did not seek to establish that he could not (with the assistance of his lawyers) have ascertained her whereabouts. The only inference which can be drawn is that calling her would not have advanced the case of any party. K. FORSEEABILITY 48 On this issue, Ms McNally was challenged before me. This evidence was given in cross examination: "Colefax: Q: Ms McNally, you had no hesitation in going in with Barbara, did you, to get your watch back? A: No. Q: Notwithstanding that you say you were going to confront the man who viciously assaulted you half an hour beforehand. That's right, isn't it? A: That's correct. Q: Notwithstanding that he was in there, not alone on this occasion but with a group of 14 or 15 mates? A: And there was plenty of other people there as well, I thought it would have been safe, my friend was with me I just wanted my watch." 49 Ms Nobles gave this evidence before Finnane J (Ex.M, pp.108-109): "HH: Q: Did you say to Ms Maloney and her – Ms McNally, 'It's not worth it' because you apprehended some danger that may occur if you re-entered the bar? Nobles: A: No, because I knew that – I just – we didn't have any help from the staff, you know, I just knew that, you know I just knew what boys I suppose can be like, you know I just knew it was – you know that you are pushing shit up hill to think that they're going to give you your watch back, you know, 'Let's not worry about that' and because they were so sincere and they've gone 'Yes, come in and get it' but that's what – that wasn't their intention at all. HH: Q: All right, we know that. Nobles: A: No, sorry. Newton: Q: I do appreciate this is difficult recalling, but I must ask you this question. Did you believe that because they seem to be sincere and inviting Ms Maloney 'the Ground Control' bar that there was nothing to indicate that this was going to be a violent attack? Nobles: A: No. HH: Q: I suppose it is a matter of commonsense. You would not have gone in if you thought there was going to be a fight? Nobles: Q: Not, being a woman, your Honour, no. HH: Q: If you like fighting I suppose, some people like fighting. Nobles: A: I hate fighting." 50 This suggests that Ms Nobles believed that it was futile to seek recovery of the wristwatch but nevertheless followed Ms McNally to give her support. However, for reasons that I have already given, this is likely to be a reconstruction by Ms Nobles. The errand was in fact futile, therefore she must have held that belief. Significantly, although she had said, "It's not worth it" she did nothing further to actively discourage Ms McNally or Ms Maloney from the errand. There is no evidence to that effect from Ms McNally. 51 I do not accept that the plaintiffs actually perceived the risk of their being assaulted if they entered Ground Control, if they entered the other part of the Hotel, in order to seek to retrieve Ms McNally's wristwatch. That does not mean that such was not reasonably foreseeable. The judgment of the plaintiffs' may well have been affected by their alcohol intake over a period of 7 hours at the Leichhardt Hotel. In the case of Ms McNally caution may well have been overcome by her understandable desire to recover her property: the perennial triumph of expectation over experience. In the case of Ms Nobles, caution may well have been overcome by her desire to support her friend, her beloved, another common human trait. 52 However, the primary enquiry at this stage is whether the risk of injury which befell the plaintiffs, or the like risk, was reasonably foreseeable by the defendant. I have reached the view that it was. The defendant, through his servant or agent Mr Spears, had had drawn to his attention during the period which I have described as the "interlude" a number of significant facts: Ms McNally had been assaulted and robbed immediately outside the entrance to Ground Control by a young man who was a member of the gang who were patrons in his Hotel playing pool and, presumably, taking refreshments of the type normally supplied in licensed premises. He was aware that at least one member of the gang had acted violently. The defendant could assume that the offender might do so again. The response of Mr Spears, that he could not offer to Ms McNally assistance because he had insufficient manpower, indicates that he had perceived that the gang, if one of them were approached, would act in consort: in other words, that the gang would support each other. This perception of Mr Spears must be attributed to the defendant. The defendant was aware that the gang would support the violent offender, probably in a similar manner. In my view it was reasonably foreseeable by the defendant that the gang might behave violently towards those such as the plaintiffs, a small number of vulnerable women who, to some, might appear to be "different". The same might not be foreseeable if the plaintiffs were a pair of front row forwards of a rugby pack, supported by the rest of their team mates. 53 However, the relevant assault did not occur in the public bar of the Hotel, the women and the gang both being present there, after the report had been made to Mr Spears. The ladies left the Hotel and could be seen to do so by him. Particularly in these circumstances, the defendant says that the plaintiffs' injuries were not reasonably foreseeable. There are two countermanding considerations: (i) the first assault occurred immediately outside an entrance to the Hotel; it was foreseeable that the ladies might need to pass by it on their way home, (as in fact, they needed to do); the gang member or a gang member or gang members might wait there for them to do so and commit similar offences or, seeing them walk by, come out and commit similar offences; (ii) the ladies had asked for assistance, for help, in regaining the stolen wristwatch but that help was declined; it was foreseeable that they might use the alternative of self-help which could lead to a confrontation which might become violent: this, in fact, is that which occurred. 54 The first consideration to which I have referred raises the issue as to the defendant's liability for injuries which might be described as being suffered "not on his premises". There is some authority on this point. Oxlade v Gosbridge Pty Ltd (unreported, Court of Appeal, 18 December 1998, 40006/97; BC 9807725) was a decision of Mason P with whom Shepherd AJA concurred, Fitzgerald AJA dissenting. The facts are succinctly set out by Mason P at the commencement of his reasons: "The appellant left the respondents' hotel at closing time. She had not consumed any alcohol and she was unaccompanied. Her car was parked close to the entrance to the hotel in its carpark. There were up to 40 other patrons in the area, several of them intoxicated and aggressive. The appellant was harassed after she entered her car. Some men banged on the windows calling out names and vulgarities. Others climbed onto the bonnet. The appellant was scared, and she reversed out of the immediate area as quickly as she could. In doing so she collided with Mr Parrish and injured him. She has been held liable to him in negligence, under a consent judgment, in the sum of $80,000 inclusive of costs. By this appeal the appellant seeks contribution from the respondents. The first respondent owned the hotel, the second and third respondents were its lessees, and the third respondent was its licensee. For the purposes of the appeal, no attempt was made to differentiate between them." 55 His Honour pointed out that a "duty to exercise reasonable care to protect patrons has been imposed upon the manager of a hotel as regards intoxicated or dangerous customers. Whatever the outer limits of such a duty, it encompasses the protection of a patron while he or she is on or departing from the licensed premises." His Honour went on to say this: "The exceptional nature of the relevant duty of care means that a hotel manager is not liable in respect of the acts of patrons unless the manager knew or ought to have known of facts requiring intervention in order to protect other patrons (Chordas at 98-99. See also Allen v Babrab , Inc 43 ALR 4th 278 and following annotations for the American case law). The case based upon absence of security personnel in the carpark was rejected in the following terms: There was nothing that occurred inside the hotel ... which would have alerted any reasonable person in the position of the [respondents] that there was likely to be anything adverse occur to Miss Oxlade when she reached the carpark. This suggests that a hotelier will only be liable to a patron when (in the light of events occurring within the hotel premises) he or she ought reasonably to have suspected that the particular patron was at risk. However, the relevant duty of care is not so circumscribed. In Chapman v Hearse (1961) 106 CLR 122, the High Court emphasised (at 120-121) that: ...one thing is certain and that is that in order to establish the prior existence of a duty of care with respect to a plaintiff subsequently injured as the result of a sequence of events following a defendant's carelessness it is not necessary for the plaintiff to show that the precise manner in which his injuries were sustained was reasonably foreseeable; it is sufficient if it appears that injury to a class of persons of which he was one might reasonably have been foreseen as a consequence. As far as we can see the test has never been authoritatively stated in terms other than those which would permit of its general application and it would be quite artificial to make responsibility depend upon, or to deny liability by reference to, the capacity of a reasonable man to foresee damage of a precise and particular character or upon his capacity to foresee the precise events leading to the damage complained of. See also Assaf v Kostrevski , Court of Appeal, unreported, 30 September 1998. Earlier in his judgment, the learned judge had found that the lighting in the carpark was not bright. And he had held that "it is a common experience that things like this occur to both males and females on licensed premises" (referring to the harassment of the appellant). The pub was crowded on the night in question. The possibility that unaccompanied female patrons might be harassed as they left the hotel was not just a matter of judicial notice ("common experience" in the trial judge's words). This was an inference properly to be drawn from the events that occurred on the evening in question, which do not appear to have been atypical. It was natural that intoxicated patrons would arrive in numbers at the carpark at or about closing time. After all, this was a hotel with a public bar and a fairly large carpark." 56 After discussing some of the evidence in the case, his Honour concluded on this issue: "In my view it should have been held that the respondents ought to have known that the harassment of a single female patron leaving at closing time was a sufficiently likely event as to have been reasonably foreseeable." 57 Bragg v RSL Henley and Grange Sub-Branch Inc [2003] SASC 226 was a decision of Gray J. The plaintiff was assaulted and injured not in the clubhouse of the defendant but on the land outside of it, which was part of the defendant's land. The defendant was aware of the offender's mental condition, of his agitation, and had refused to serve him alcohol because of his annoying and disruptive behaviour. The president of the defendant, who was working behind the bar, asked the offender to leave and the offender did so. There was no incident in the clubhouse as the offender left. Outside the clubhouse, the offender assaulted the plaintiff, without any provocation by the plaintiff. A magistrate had dismissed the plaintiff's claim but he was successful on appeal. Commencing at [29] Gray J said: "These circumstances gave rise to a foreseeable risk that Mr Ravesi may continue to behave in a disorderly and offensive manner. There was a risk that was not far fetched and fanciful that Mr Ravesi's conduct may expose patrons to a risk of injury. In these circumstances the club failed in its duty of care to Mr Bragg by not having Mr Ravesi escorted from the club premises. It would have been simple and straightforward to have one or more appropriate club personnel escort Mr Ravesi from the premises and make arrangements for his safe journey home or as otherwise directed. This was not done. The duty to remove Mr Ravesi included the need to escort him from all areas frequented by patrons. This included the outdoor area where Mr Bragg was with friends. Further steps could have been taken to protect patrons. All patrons could have been warned so that they might be on notice that Mr Ravesi was leaving and may behave in a disorderly or offensive manner. This did not happen. [30] These steps represent the minimum action necessary to maintain control of the premises. It was not enough to simply request that Mr Ravesi leave. Patrons remained exposed to a risk of offensive and disorderly behaviour. The request to leave was inadequate and did not discharge of the club's duty of care towards its patrons including Mr Bragg." 58 These authorities establish that the hotelier has a duty that includes a duty to those in the car park of the hotel and to those in "areas frequented by patrons". Nevertheless the defendant has submitted that the first assault occurred outside his premises (even though I have held it to occur on his land) and, theoretically, the major assault might have occurred off the defendant's premises. With great respect, this cannot be right. I am here dealing with the common law, not some statutory distinction: see Williams v Ducon Condenser Ltd [1949] WCR 122, where a girl riding a bicycle home from work, lost control of it when it passed over an uneven surface outside a gate of her home and she was thrown from the bicycle, receiving injuries by falling on the driveway inside the gates of her own home's land but failed to receive compensation because she had "arrived home". If a brawl erupted in the Hotel, for which the defendant were liable, and a person was thrown through an entrance, landing on his head on the footpath which caused, say, a closed head injury, the defendant could hardly deny liability. Equally, if the brawl spilled out into the public street, that patron would in my view, be able to recover damages. I am here dealing with an inner city hotel whose entrances lead directly onto the footpath, a public place, not with a suburban hotel or club, set back from the street, surrounded by garden or lawn, with large car parks or the like. All I need to say is that I accept that the defendant's duty to control patrons upon is premises includes a duty to other patrons in the immediate vicinity, of his premises. I do not suggest, for example, that the duty extends to protect patrons who leave the premises and are set upon by other former patrons laying in wait in some laneway close by unless, of course, this be well known to the hotelier. It appears to me to be a question of degree. Here the defendant had had drawn to his attention what one of the patrons did immediately outside of Ground Control. It was reasonably foreseeable that it could happen again. L. PREVENTABILTY 59 In deciding Bragg, Gray J applied the "Shirt Calculus" which he stated in this fashion: "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 or to class of persons including 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 response to be ascribed to the reasonable man placed in the defendant's position." 60 I turn now to consider what a reasonable man in the position of the defendant ought reasonably to have done in response to the foreseeable risk. In this regard it is important to bear in mind some provisions of the Liquor Act 1982. Section 2A is in the following terms: "A primary objective of this Act is liquor harm minimisation, that is, the minimisation of harm associated with misuse and abuse of liquor (such harm arising from violence and other anti-social) behaviour. The court, the Board, the Director, the Commissioner of Police and all other persons having functions under this Act are required to have due regard to the need for liquor harm minimisation when exercising functions under this Act. In particular, due regard is to be had to the need for liquor harm minimisation when considering for the purposes of this Act what is or is not in the public interest." 61 Under section 103(1)(a) a licensee or his or her employee may turn out or cause to be turned out any person who is intoxicated, violent, quarrelsome or disorderly. Under section 103(3A) such reasonable degree of force as may be necessary may be used to turn a person out of licensed premises. Section 103(4) provides: "Where a member of the Police Force is requested by a licensee or an employee of the licensee to turn out, or to assist in turning out, of the licensed premises a person whom the licensee is entitled under subsection (1) or (2) to turn out of the premises, it is the duty of the member of the Police Force to comply with the request and he or she may, for that purpose, use such reasonable degree of force as may be necessary." 62 Section 125 creates certain offences. One of those is that a licensee should not permit violent or quarrelsome conduct or his or her licensed premises. 63 What could the defendant, through Mr Spears, have done? He could have turned out the male gang member identified to him by Ms McNally. If he perceived that because of the gang's solidarity that may have been impossible or impracticable or have led to violence, he could have requested the police to do so. In the present matter that would have served a second purpose: the police could have apprehended the offender and recovered Ms McNally's wristwatch. There would have been a delay before the police arrived of say, 15 to 20 minutes. However, the three ladies had bought drinks. Mr Spears could have invited the ladies to consume them whilst waiting for the police to arrive. They would have been deterred from seeking self-help. If this had occurred, the major assault would not have occurred. Senior Constable Gooley gave this evidence: "Barry: Q: If before this affray had erupted at this hotel the manager telephoned had telephoned and said that there were patrons in the hotel who he wished to leave, that they had refused to leave when asked, and he needed police assistance, what would have been the practice in 1998 in relation to such a call had you received it on your radio when you were on duty at 1:10am? A: We would've attended the hotel and spoken with the person, spoken with the manager, and spoken with the persons who were refusing to leave, and dealt with them accordingly, be it through the Liquor Act or if they left the premises then, there's always Q: If when you had arrived it had come to your notice that a person had earlier been assaulted on the premises and their watch had been stolen by one of the persons that the manager of the hotel wished to leave the premises, if that person was still on the premises, when you arrived what would your practice have been? A: We would have detained that person to investigate the offence and if there was evidence to support the allegation then would've taken the necessary action, required from that. Q: What is the kind of evidence to support the allegation that you've been looking for? A: Well, it's the evidence that we gather is not in terms of to prove the offence rather than to establish what has happened. HH: Q: For example, if you were called to the hotel and one of the patrons of the hotel told you that an identified male person over there had kicked her, had punched her, knocked her to the ground, kicked her in the stomach and then stolen her watch, what would you have done? A: We would have taken the details from the victim, taken a statement and detained the person who has been identified as the suspect, interviewed them in relation to it and spoken to witnesses at the scene who may have seen what has happened, and from whatever evidence we gathered we'd either charge the offender or release the suspect depending on which way the evidence indicated. What I'm saying is, if there's evidence there that supports that claim then we'd charge him, if there's not then we wouldn't. Q: But if you went into the hotel and a lady said to you, look, that man over there just kicked me, punched me and stole my watch, I would have thought, constable, the first thing you would have done is go and arrest him lest he decamp? A: Obviously if he tried to leave then we'd stop him, if he's standing up the back of the hotel unaware of what we're doing were not going to create a fracas while we can still take some details." That evidence adequately supported this argument. 64 Antecedent to calling the police there was another thing Mr Spears might have done. He could have approached the offender and sought the return of the wristwatch. A refusal to do so would give him cause to turn out the offender or cause him to be turned out by the police. The offender might have been more receptive to a male authority figure in the Hotel than to the ladies. If Mr Spears feared too much for his own safety to do that, all the more reason did he have to call for the assistance of the police. 65 There were other things he could have done. He could have escorted the ladies from the hotel and ensured that they negotiated the way past the entrance of Ground Control in safety. If they tarried there (as they did) he could have told them to go home, that it would be futile to seek the recovery of the wristwatch. He could, alternatively, have stayed within the hotel, entered Ground Control and positioned himself near the entrance, to ensure that there was no interaction between the gang and the ladies. If the ladies entered Ground Control (as they did) he could have intervened and told them that there could be violence and to go home. If he were present in Ground Control during the verbal altercation (which he was at some unspecified time) he could have intervened and sought to diffuse the situation which was developing, as Mr Drennan described. 66 What did Mr Spears do? On the evidence before me, he did nothing. What I have suggested he could have done was neither expensive or difficult or inconvenient unless he were concerned that his personal safety was threatened, in which case he ought to have commenced by calling for the police. In my view not only were the plaintiffs' injuries, or the event in which they were injured foreseeable, the injuries and the event were preventable. 67 On this issue, the defendant pointed out that no evidence was adduced from the plaintiffs that they would have stayed at the Hotel in order to retrieve the watch, if the police were called. That is so, but it does not mean that they would not have done so. The plaintiffs were not cross-examined to the effect that they would have left the Hotel even if the police were called. The inference to be drawn from the evidence is that Ms McNally earnestly desired the return of her watch. If offered the prospect of its recovery when the police arrived, the probability favours the position that Ms McNally would have stayed and that Ms Nobles would have stayed to support her. The defendant also submitted that the plaintiffs did not ask Mr Spears to call the police and did not seek access to a telephone in order that they might call the police. There is certainly no evidence to that effect. However, this submission ignores a significant fact: who had the greater awareness of the obligation of the police to support the licensee of the Hotel, the licensee himself, the defendant, and his manager, Mr Spears, or the plaintiffs? In my view the remedy via the police would be better known to the defendant than to the plaintiffs. The defendant had the legal obligation under the Liquor Act 1982 to keep order in his licensed premises and was entitled to the aid of the police in so doing. He should have known of his right and not relied on the suggestion of the plaintiffs to invoke it. 68 At [21] above I drew certain inferences arising from the evidence concerning earlier outbreaks of violence and the earlier use of bouncers. However, the evidence before me does not enable me to find that bouncers ought to have been engaged on the evening now in question. In Blatch v Archer (1774) 1 Cowp 64, 98 ER 969, Lord Mansfield pointed out: "It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted." The plaintiffs relied on this maxim. However, in my view, it cannot be used to establish a prima facie case. The evidence is extremely vague as to there being music at the Hotel on this night, let alone live music. The extent of the number of the patrons at the Hotel was never established. One would think that the number would be less at 1am than at 10pm or 11pm but this may reflect a generational assumption! The evidence does not establish when the gang arrived at the Hotel, whether it was early e.g. 6pm or much later, shortly before the arrival of the plaintiffs. Evidence on such issues would need to be called to enable me to find that security staff ought to have been provided on this evening. If Mr Drennan's recollections were not so limited, he might have been able to give such evidence, but he did not. I am accordingly, unable to find that security staff ought to have been engaged on this evening but, if they had been engaged, they could have prevented the major assault. M. THE DUTY OF CARE 69 In discussing forseeability and preventability I have, perhaps jumped ahead of myself. The primary submission made by the defendant is that he had no duty of care to the plaintiffs that encompassed a duty to protect them from other patrons, such as the gang. Mr Colefax relied principally on Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254. The facts of that case are succinctly stated in the headnote: "A suburban shopping centre in which shops were leased to tenants had a large outdoor car park. A tenant operated a video shop business until 10pm. One night an employee of the tenant was attacked and badly injured while walking to his car in the car park. The shopping centre's floodlights had been turned off by the landowner at about the time the shop had closed and there was no other direct lighting in the car park." 70 The judgments delivered in this case must be considered in the light of the facts in consideration. The facts of the present matter are very different. Modbury states the general proposition that the duty of the occupier of land does not extend to taking reasonable care to prevent physical injury to another resulting from the criminal behaviour of third parties on that land. That there are exceptions to this general principle is acknowledged, but the present defendant says that he is not within the category of an acknowledged exception. With great respect, I am unable to accede to that proposition. On the question of exceptions, or "special relationships", Gleeson CJ said at [18]: "The basis of the duty which, as occupier, the appellant owed in relation to the physical state or condition of the premises was control over, and knowledge of, the state of the premises (32). [19] The appellant had no control over the behaviour of the men who attacked the first respondent, and no knowledge or forewarning of what they planned to do. In fact, nothing is known about them even now. For all that appears, they might have been desperate to obtain money, or interested only in brutality. The inference that they would have been deterred by lighting in the car park is at least debateable. The men were not enticed to the car park by the appellant. They were strangers to the parties. [20] In Smith v Leurs (33), Dixon J said: 'It is, however, exceptional to find in the law a duty to control another's actions to prevent harm to strangers. The general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third. There are, however, special relations which are the source of a duty of this nature. It appears now to be recognised that it is incumbent upon a parent who maintains control over a young child to take reasonable care so to exercise that control as to avoid conduct on his part exposing the person or property of others to unreasonable danger.' [21] Control was the basis of liability in Dorset Yacht Co Ltd v Home Office (34) , where Lord Morris of Borth-y-Gest (35), after citing the above passage, said that the case was one of a special relationship involving a duty to control another's actions. [22] Reliance is sometimes the basis of a duty of care. Here there was no relevant reliance. Why the video shop could not have been closed in sufficient time to enable employees of the shop to walk to their cars before the lights went off (assuming they went off at 10 pm) was not investigated at the trial. There was nothing to prevent the first respondent's employer from making such arrangements for the security of its employees as it saw fit. The lease did not give the appellant the exclusive right to take measures for the safety and security of employees and customers of tenants. [23] The present is not relevantly a case of assumption of responsibility. The respondents submitted that the appellant assumed responsibility for the illumination of the car park. That submission confuses two different meanings of responsibility: capacity and obligation. The appellant owned and occupied the car park, controlled the lights in it, and decided when they would be on and when they would be off. But the relevant question is whether the appellant assumed an obligation to care for the security of persons in the position of the first respondent by protecting them from attack by third parties. [24] In Kondis v State Transport Authority (36) Mason J said: ' The element in the relationship between the parties which generates a special responsibility or duty to see that care is taken may be found in one or more of several circumstances. The hospital undertakes the care, supervision and control of patients who are in special need of care. The school authority undertakes like special responsibilities in relation to the children whom it accepts into its care. If the invitor be subject to a special duty, it is because he assumes a particular responsibility in relation to the safety of his premises and the safety of his invitee by inviting him to enter them. And in Meyers v Easton (37) the undertaking of the landlord to renew the roof of the house was seen as impliedly carrying with it an undertaking to exercise reasonable care to prevent damage to the tenant's property. In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety , in circumstances where the person affected might reasonably expect that due care will be exercised.' (Emphasis added.) [25] The fact that, as occupier of the car park, the appellant had the capacity to decide when, and to what extent, it would be lit at night, does not mean that the appellant assumed a particular responsibility to protect anyone who might lawfully be in the car park against attack by criminals. The policy adopted by the appellant as to the hour at which the lights went off suggests that the purpose of the lights was to attract customers, rather than deter criminals. Whether or not that is so, there is nothing in the evidence to suggest that the appellant assumed a responsibility which, at least in the case of employees of tenants of the Centre, might ordinarily be expected to be a responsibility of their employers. It was the first respondent's employer which decided the hour at which the video shop would close, and what, if any, arrangements would be made for the after-hours security of employees. The argument provides an example of what Gummow J, in Hill v Van Erp (38), described as '[t]he use of the imprecise and beguiling but deceptively simple terms `known reliance' and `assumption of responsibility'.' [26] Leaving aside contractual obligations, there are circumstances where the relationship between two parties may mean that one has a duty to take reasonable care to protect the other from the criminal behaviour of third parties, random and unpredictable as such behaviour may be. Such relationships may include those between employer and employee (39), school and pupil(40), or bailor and bailee (41)." 71 Gaudron J agreed with the Chief Justice and with certain remarks of Hayne J to which I shall refer. Her Honour acknowledged "special relationships", to use the words of the Chief Justice. 72 Paragraphs [110], [111] and [117], in the judgement of Hayne J also need to be considered (at p.292, pp.293-294): "[110] Some emphasis was given in oral argument to the proposition that an employer may owe an employee a duty to take reasonable care to prevent the employee being robbed. If that is so, however, it is because the employer can prevent the employee going in harm's way (147). The employer has the capacity to control the situation by controlling the employee and the system of work that is followed. The duty which the employer breaks in such a case is not a duty to control the conduct of others. It is a duty to provide a safe system of work and ensure that reasonable care is taken (148). [111] In those cases where a duty to control the conduct of a third party has been held to exist, the party who owed the duty has had power to assert control over that third party. A gaoler may owe a prisoner a duty to take reasonable care to prevent assault by fellow prisoners. If that is so, it is because the gaoler can assert authority over those other prisoners (148). Similarly, a parent may be liable to another for the misconduct of a child because the parent is expected to be able to control the child (150). [117] Established principle provides the answer to the present problem because it reveals that there is no duty to control the criminal conduct of others except in very restricted circumstances. Being an occupier of land should not be added to those exceptional cases, at least where the complaint that is made by the plaintiff is not about the occupier failing to control access to or continued presence on the premises (155). I would wish to reserve for consideration in a case in which they are raised the questions that are presented by a complaint of that last kind. Further, like Gleeson CJ, I would wish to leave open for consideration the appropriate approach in cases where an occupier has a high degree of certainty that harm will follow from lack of action. 73 Footnote 155 gives reference to Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91 and Public Transport Corporation v Sartaric [1997] 1 VR 168 74 The authorities persuade me that the relationship between the occupier of the licensed premises and his patron is one of the "special relationships" which provides an exception to the general rule. Chordas was a decision of the Federal Court of Australia (Davies, Kelly and Neaves JJ) on appeal from a decision of the Supreme Court of the A.C.T. The trial judge had dismissed the plaintiff's claim for damages for personal injury. The plaintiff had been a patron of the defendant's hotel in Canberra. The plaintiff was assaulted by another patron, King. King was well affected by alcohol, having been drinking before his arrival at the hotel and drinking between 15 and 18 middies of beer at the hotel. At 99, their Honours said: "Particularly in the case of an hotel, which provides a facility pursuant to a licence authorising the provision of liquor and pursuant to Acts and regulations which require or imply that the facility be open to the public, it is necessary to keep in mind that the licensee may have no control over his patrons save the power to eject them for good cause. As we have said, the manager of an hotel, like the manager of other facilities, must take reasonable care for his patrons and, if cause is shown which requires that a patron be closely supervised or ejected or that another patron be warned, the manager should take whatever may be the appropriate step in the interests of the safety of his patrons. However, what is the appropriate course in a particular case obviously depends upon the circumstances of the case." 75 Nevertheless, the plaintiff failed as the trial judge found that King was not known to be of a violent or aggressive disposition or to be troublesome and, at the time of the assault, he was not behaving in such a way as to make his mere presence an obvious danger to others in the bar. The assault was held to have occurred simply because the plaintiff provoked King and it was not established that the assault would not have occurred if King had not consumed so much liquor. 76 Guildford Rugby League Football and Recreational Club Ltd v Coad [2001] NSWCA 139 was an appeal from Delaney DCJ who had found for the plaintiff. The plaintiff had been injured after falling on broken glass whilst attempting to avoid a fight between two others, which occurred as a result of the aggression of one those persons. The appeal was allowed. It was held that the defendant had taken all reasonable steps to prevent further disturbances between the two. The evidence showed that after an initial altercation the protagonist showed no further signs of aggression and as such no reasonable person in the defendant's position would have taken steps to evict him. Whilst there was sufficient evidence to support a finding that the defendant should have employed security guards on the Sunday when the fight occurred, in the circumstances it was held to be unlikely that security guards would have prevented the fight and consequential injury to the plaintiff. Davies AJA (dissenting) referred to Chordas and cited the passage from it, which I have already cited. His Honour continued, commencing at [7]: "In this appeal, counsel did not dispute that that passage describes the content of the duty of care in a practical way, although, of course, Australian authorities, such as Wyong Shire Council v Shirt (1980) 146 CLR 40 dealing with issues of proximity and foreseeability, must be applied. [8] A manager of licensed premises has a more onerous responsibility than has a manager of non-licensed premises, because of the well-known effect of alcohol upon those who consume it. Alcohol tends to reduce inhibitions and to relax control. This is a factor of which proprietors and managers of licensed premises are well aware. It was the factor, which, in Oxlade v Gosbridge Pty Ltd (unreported, Mason P, Sheppard and Fitzgerald AJJA, 18 December 1998), led the Court to conclude that the harassment of a single female patron leaving a hotel at closing time was a sufficiently likely event as to have been reasonably foreseeable." 77 Ipp AJA (with whom Rolfe AJA concurred) cited at [47] the dictum of Dixon J in Smith v Leurs quoted by Gleeson CJ in Modbury. He then referred to Modbury and continued, commencing at [49]: "In the present case, however, the appellant did not dispute that it owed the respondent a duty of care to take reasonable steps for his safety. This acceptance of a duty of care was based on Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91 and Oxlade v Gosbridge Pty Ltd , unreported, NSWCA, 18 December 1988 where it was held that a hotel owner had a duty to take reasonable steps to protect one patron from a foreseeable risk of injury from the acts of another patron. [50] Whether there was a breach of the admitted duty of care depends upon 'the action that a reasonable person in the [appellant's] situation would have taken to guard against the foreseeable risk of injury which existed': per Mason CJ, Deane, Dawson and Gaudron JJ in Nagle v Rottnest Island Authority (1993) 177 CLR 423 at 431; see also Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at 454." 78 Ashrafi Persian Trading Co Pty Ltd t/as Roslyn Gardens Motor Inn v Ashrafinia [2001] NSWCA 243 did not involve the licensed part of premises. The plaintiff had slept overnight at a motel managed by her brothers in a ground floor room occupied by one of her brothers. About 7am the plaintiff was hit on the head by an iron bar wielded by a person unknown outside the building through a gap between the sliding door and the wall of the room. The door had been left 15cm open, but could not be opened further by the offender. Black DCJ found for the plaintiff but the appeal was allowed. The principal judgment was given by Heydon JA (as he then was). Mason P and Handley JA concurred. Heydon JA considered whether the "Modbury doctrine" was applicable to this matter. Commencing at [64], his Honour said: "There is ample authority illustrating the 'relationships' to which the High Court referred in which a party has a duty to protect another from the criminal conduct of a third.(a) Employers must take reasonable care to protect their employees from the criminal acts of third parties whether on premises occupied by the employer ( Public Transport Corporation v Sartori [1997] 1 VR 168) or in other places where the employee is carrying out duties for the employer ( Chomentowski v Red Garter Restaurant Ltd (1970) 92 WN (NSW) 1070 (manager attacked while delivering restaurant takings to bank); Fraser v State Transport Authority (1985) 39 SASR 57 (bus driver attacked while waiting in dangerous area); McLean v Tedman (1984) 155 CLR 306 (garbage collector struck by negligently driven car while carrying garbage humper across road); Pacific Access Pty Ltd v Davies [2001] NSWCA 218 (sales consultant attacked while visiting premises of client in Port Morseby)). This duty of employers flows from their duty to take reasonable care in establishing, maintaining and enforcing a safe system of work in the sense of safeguarding employees from unreasonable risks in the methods by which work is undertaken.(b) Schools can owe duties to pupils to prevent crimes being committed against them at school or in the course of journeys to or from school ( Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman (1996) Aust Torts Reports 81-399 (pupil of one school hit by stick thrown by pupil of another school while waiting for a bus 400 metres from school)).(c) Bailees of chattels normally owe a duty to bailors to take reasonable care to keep the chattels safe from the crimes of third parties ( Pitt Son & Badgery Ltd v Proulefco SA (1984) 153 CLR 644 (wool broker obliged to take reasonable care to prevent wool being destroyed by arsonist)).(d) Parents owe a duty to take care to prevent their children injuring third parties by their conduct, including their criminal conduct ( Smith v Leurs (1945) 70 CLR 256; Curmi v McLennan [1994] 1 VR 513).(e) In some circumstances gaolers owe a duty to take care to prevent prisoners being injured in gaol, for example, by fire ( Howard v Jarvis (1958) 98 CLR 177), and to prevent persons being injured by the crimes of prisoners, whether they be prisoners who have departed from custody ( Greenwill v Prison Commissioners (1951) 101 LJ 486 (theft and malicious damage to property); Thorne v State of Western Australia [1964] WAR 147 at 151 (duty to prisoner's wife assumed if gaoler knew that prisoner was likely to attack his wife); Dorset Yacht Co Ltd v Home Office [1970] AC 1004 (malicious damage to property)) or prisoners who injure other prisoners in gaol ( Ellis v Home Office [1953] 2 All ER 149 (if the gaoler knew or ought to have known of the risk of plaintiff being physically attacked); L v Commonwealth of Australia (1976) 10 ALR 269). [65] These exceptions can be tied back to the control criterion which in significant measure underlies the main principle. The relationship of employer and employee is one in which the law has for a long time been exceptionally solicitous for the employee's interests inter alia because of the control which the employer has over the incidents of the relationship. The relationship of school and pupil is one in which the pupil can be exceptionally vulnerable by reason of youth and inexperience and in which the school has a measure of control. It is inherent in the relationship of bailor and bailee that the bailee has a duty to take reasonable care to keep the goods bailed safe against third parties, including criminal third parties, because the bailee, by reason of its control of the goods, is in the best position to fulfil it. Strangers cannot control the children of others, though parents are supposed to be able to. A gaoler has control over prisoners and 'control imports responsibility': Dorset Yacht Co Ltd v Home Office [1970] AC 1004 at 1055 per Lord Pearson. [[66] The High Court made it plain that the 'special relationships' do not constitute a closed list of categories; nor are the boundaries of each particular category fixed, because ultimately each category rests on particular circumstances which make it just to impose liability. A famous instance of particular circumstances of that kind is Haynes v Harwood [1935] 1 KB 146 where the defendant's carter created a source of danger by leaving a horse-drawn van unattended in a crowded street. The horses bolted when a boy threw a stone at them. A police officer who suffered injuries in stopping the horses before they injured others was held entitled to recover damages from the defendant. To be rendered liable for having created a source of danger, of course, is to be rendered liable for more than mere inaction. Indeed the category of 'special circumstances' or 'a special relationship' can obviously overlap with cases where liability is found because of 'a high degree of certainty that harm will follow from lack of action.' Frequently recurring crimes might establish a high degree of certainty that harm will follow, and also evidence special circumstances, for example the case presented but not proved in Eggins v Canberra Enterprises Pty Ltd (1974) 2 ACTR 66 (user of toilet at drive-in theatre injured by fireworks being thrown at him against a background of earlier instances of the abuse of fireworks). In Smith v Littlewoods Organisation Ltd [1987] AC 241 Lord Goff gave various other instances of possible liability. One was the liability of a person left alone in a house who has entered as licensee of the occupier and thereby assumed responsibility to secure it against intruders (at 272). Another arises where one occupier of land permits or causes persons to gather on the land, thereby impairing the enjoyment of a neighbour's land (at 272). Neither he nor the High Court suggested that there was anything rigid about the exceptions to the general principle that an occupier is not liable for injury to others caused by the criminal acts of third parties on the occupier's land." 79 Under heading "Is any exception to the Modbury doctrine available?" his Honour said this at [70]: "The next issue, then, is whether the plaintiff can utilise one of the avenues for success left open by the High Court in the Modbury case. There appear to be three possible avenues for success. (i) The first avenue is the existence of special circumstances or a special relationship. Gleeson CJ at [35] spoke of 'some special relationship of the kind earlier mentioned', ie relationship exemplified by those between employer and employee, school and pupil, or bailor and bailee. Callinan J spoke of 'something special in the circumstances, or the nature of the relationship between the plaintiff and the defendant' (at [147]). (ii) The second avenue for success is where the occupier has 'a high degree of certainty that harm will follow from lack of action': see Hayne J at [117] and Gleeson CJ at [30] and [34]. (iii) The third avenue is left open as a possibility by Hayne J in the following passage:"there is no duty to control the criminal conduct of others except in very restricted circumstances. Being an occupier of land should not be added to those exceptional cases, at least where the complaint that is made by the plaintiff is not about the occupier failing to control access to or continued presence on the premises.[155] I would wish to reserve for consideration in a case in which they are raised the questions that are presented of a complaint of that last kind." The cases referred to in footnote [155] are Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91 and Public Transport Corporation v Sartori [1997] 1 VR 168. Chordas' case concerned the duty of a hotel keeper towards patrons and in particular the duty of a hotel keeper to eject intoxicated patrons who might cause harm to others. (See also Wormald v Robertson (1992) Aust Torts Reports 81-180; Oxlade v Gosbridge Pty Ltd (NSWCA, unrep, 18 December 1998.) Sartori's case concerned the duty of an employer to an employee to prevent the employee being injured on premises which were supposed to be closed so as to exclude members of the public." 80 His Honour ultimately found that was unnecessary to determine this question because, assuming that the duty existed, it had not been breached. 81 This issue was visited by the Victorian Court of Appeal in Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447. The facts can be taken from the headnote: "A police officer was injured in a brawl one night at a social club. Crowd controllers employed by the club had earlier that night identified the man who attacked the policeman as a potential troublemaker but decided against ejecting him for fear of causing a disturbance. The policeman and a colleague were called to the club about an hour before the brawl and walked through it. He agreed to return later and did so again with only one colleague. He had not been warned before returning that the situation had deteriorated. When he returned there was widespread fighting inside the club and in the car park. The injured policeman sued the club and the State of Victoria for damages for negligence. A County Court judge dismissed the claim against the State of Victoria, upheld the claim against the club and awarded $476,274 damages. The club appealed on liability and quantum." 82 The Court (Brooking, Charles and Chernov JJA) delivered a joint judgment. Commencing at [33] their Honours said: The duty of care and criminal acts "The club says it owed the plaintiff no duty of care relevant to the harm which befell him — injuries inflicted by a vicious ruffian. It relies on what Dixon J said in Smith v Leurs : 'It is, however, exceptional to find in the law a duty to control another's actions to prevent harm to strangers. The general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third. There are, however, special relations which are a source of a duty of this nature.' And the club relies especially on what was laid down by the High Court in Modbury Triangle Shopping Centre Pty Ltd v Anzil3 about the limited circumstances in which there will or may be a duty to take reasonable care to protect a person from the criminal behaviour of another. Those circumstances do not exist in the present case, says the club. It goes on to raise a point which could not have been put forward in Modbury , saying that it would not be politic to recognise a duty of care owed to the plaintiff in relation to injuries sustained as these were. The Modbury case distinguished [34] We think that these submissions are unsound. The facts in this case bear no resemblance to those in Modbury , where the occupier of a shopping centre was held to owe no duty of care to the employee of a video rental store there who was attacked and injured at night by assailants in an unlit car park. The criminals in Modbury were in no sense under the control of the defendant. Its supposed negligence lay in its failure to light the car park, the lights having evidently being turned off at 10 pm, half an hour before the attack. [35] Here the ruffian Holton could not properly be described as not under the control of the club. It did in fact fail lamentably to control him, and this is the only sense in which he was not under its control. He was allowed to misbehave, out of control, when he should have been kept under control by the club, which had invited him onto its premises and allowed him to remain there for the purposes of its business (for present purposes) of conducting social functions on its licensed premises at which it sold liquor to the patrons. The particular function was to begin, with early arrivals, at about 7pm and to end at about 1am. More than 400 patrons were to attend. No doubt exists about the legal right of the club to eject drunken or disorderly persons: by statute it had the duty to do so. 4 Crowd controllers have for many years been a fact of life in this State. We have already mentioned the legislation which has since 1990 required them to be licensed and required the keeping of a register containing details of incidents calling for the removal of a person. The club regularly employed crowd controllers and did so on this night. We have already mentioned the expert evidence about the appropriate ratio of controllers to patrons in a venue of this kind. A business which generates disorder [36] Quite apart from what the expert and other evidence disclosed in this case, it is a matter of common sense and experience that, where liquor is to be sold to large numbers of people at nocturnal entertainments extending over a long period of time, there is a danger of drunkenness and violent and other offensive behaviour. There is a general recognition that the use of crowd controllers is usual and (given that there are to be such entertainments) appropriate. What the club was really doing here was, in the course of its business, creating a potentially dangerous situation on its own premises, as it recognised, even before the night began, by its engagement of five crowd controllers. Crowd controllers are there to control crowds; 5 they are there because of the danger that things will get out of control, notably, one might add, in relation to physical violence. As the regulations already referred to show, one of the functions of the crowd controller — again this is only a matter of common sense and common experience — is to assist in maintaining order by removing disorderly persons from premises. Persons in the position of the club realise that in the course of their business they are attracting potential trouble-makers to their premises, and they take steps to deal with the resulting danger of violent and other disorderly behaviour. If a person becomes drunk or criminally disorderly on their premises, then it is they who have invited the potential criminal to their premises and created the environment in which the criminal activity has occurred. They are under a statutory duty — we are not here concerned with rights of action for breach of a statutory duty — to expel drunk and disorderly persons and they recognise that they are under a responsibility to maintain order on their premises. [37] It is difficult to imagine a greater contrast between the facts of the present case and those of Modbury . The club concedes that it owed a duty of care to patrons to protect them against attacks by other patrons on the premises and that if the plaintiff in the car park here had been, not a member of the police force, but a patron, then no question would have arisen about the existence of a duty of care in relation to the kind of harm done. In our opinion a duty of care was owed to the plaintiff." 83 Their Honours went on to find that a "special relationship" existed at [45]: "Each of the majority judgments in Modbury makes it clear that the basis of the 'special relationship' exception is, as the NSW Court of Appeal has noted, the existence of 'control'. Where the defendant is in a position to control the offender, a special relationship may be held to exist. The club was in a position to control Holton; a special relationship, and prima facie a relevant duty of care, existed. The case is also one of the occupier's failure to control access to or continued presence on the premises, a category reserved by Hayne J for future consideration. 9 We need say no more about this category. Nor need we consider whether an exception to the general rule should be held to exist by reason of the degree of foreseeability and predictability of criminal conduct. [46] We have said that here a special relationship, and prima facie a relevant duty of care, existed. The club contends that it is inexpedient that a duty of care be recognised. The argument here is that police officers have the training and experience, and the duty, to evaluate and deal with situations like that which existed at the premises; that occupiers cannot be expected to make their own evaluation; that the imposition of a duty of care might deter occupiers from sending for the police; and that it would be wrong to impose a duty of care for the protection against criminal conduct of the very persons whose duty it was to enforce law and order." 84 I have been referred to the Cole decisions by Counsel, South Tweed Heads Rugby League Football Club Ltd v Cole (2002) 55 NSWLR 113 and Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469. The facts are succinctly stated in the headnote in the CLR: "A person had been drinking at the licensed premises of a football club for most of the day. At about 3pm her request for more alcohol was refused by the club. At about 5:30pm the club manager asked her to leave on account of her drunken and indecent behaviour. The manager offered the use of the club's courtesy bus or to call her a taxi. She rejected those offers and left the premises on foot in the company of two men. She suffered serious injuries when she was struck by a motor vehicle on a public road shortly thereafter. She claimed that the club owed her a duty of care to ensure that she travelled from the club safely and/or to monitor or moderate her drinking during the day." 85 The duty of care alleged to be owed to the patron by the Club in that case was much higher than is suggested in the current matter or in the earlier authorities. The principal judgment in the Court of Appeal was delivered by Ipp AJA with whom Heydon and Santow JJA concurred. Commencing at [151] his Honour discussed the general duty of care owed by the Club to Ms Cole. At [153] he said: "It is generally accepted that the duty to take reasonable care to avoid foreseeable risk of injury to invitees, owed by the occupier as person in control of a hotel, restaurant, bar or similar establishment, extends to injuries to patrons caused by tortious or criminal acts of other patrons." 86 His Honour than went out to refer to Chordas, Oxlade v Gosbridge Pty Ltd, and Guildford RLF&RC. Commencing at [156] his Honour referred to the "extension of the general duty of care" proposed in this case and rejected it at [194] stating that the Club owed to Ms Cole "the ordinary general duty of care owed by an occupier to a lawful entrant." A majority of the High Court (Gleeson CJ, Gummow, Hayne and Callinan JJ, McHugh and Kirby JJ dissenting) dismissed the appeal to that Court. Those in the majority discussed the proposed extension to the "general duty of care". They did not state that that duty of care did not exist. 87 The next case, chronologically, to which I was referred was Proprietors of Strata Plan 17226 v Drakulic (2002) 55 NSWLR 659. The facts of that case are very different to the one that I am currently considering. The facts may be gleaned from the headnote: "The plaintiff owned a unit in a residential building. The body corporate had installed a lock on the entry doors to the building but about a quarter of the time the doors were left unlocked after 11pm. Some steps to provide safety lighting had also been taken.On 6 May 1993, the building manager disarmed the lock, and the plaintiff was aware that the doors could not be locked thereafter. While there had been some break-ins into the plaintiff 's unit through the balcony, there had been none through the front doors of the building. On 9 September 1993 at about 2:45am, when the plaintiff was returning to her unit from work, she was robbed and bodily injured by a masked intruder inside the building on common property. She sued the body corporate and the building manager in negligence." 88 The principal judgment was given by Heydon JA, with whom Mason P and Hodgson JA concurred. His Honour dealt with the "Modbury doctrine" as he had in Ashrafi and then considered whether a "special relationship" existed. Commencing at [89] his Honour said: "If new categories of 'special' relationship are to be created within which a defendant is to be liable for the criminal acts of third parties, the step is not merely factual. It would involve a matter of law — indeed a change in the law. A change in the law of that order of significance is not something which this Court should undertake. It is a matter for the High Court. That conclusion is fortified by the fact that Gleeson CJ was not prepared, because it was not necessary to do so, '… to express a concluded opinion as to whether foreseeability and predictability of criminal behaviour could ever exist in such a degree that, even in the absence of some special relationship, Australian law would impose a duty to take reasonable care to prevent harm to another from such behaviour': (at 268 [34]). It is also fortified by the fact that Hayne J specifically left the matter open: (at 293 [117]). And it is fortified by Hayne J's decision to reserve consideration of a different question, namely whether an occupier owes a duty of care to control the criminal conduct of third parties by failing to control their access to or continued presence on the premises: (at 293 [117]). When judges of the High Court decide to leave matters open for consideration in future cases, they do so because of a consciousness that to create an exception to the principle precluding recovery for the criminal acts of third parties is to take an important step not to be embarked on without careful consideration in a particular case requiring the step. The making of significant changes in the law by taking steps of that kind is, if not beyond the competence of intermediate appellate courts, something not to be done lightly. It is better for these matters to be left open for the consideration of the High Court." 89 This is the decision principally relied upon by Mr Colefax in the present matter. He submitted that the current case called for the recognition of a new category of special relationship and, as such, was a matter for the High Court of Australia rather than a puisne judge of this Court. However, the cases decided before Drakulic clearly recognised the present relationship as a special relationship and, indeed, Heydon JA had acknowledged that in Ashrafi to which he referred at [91]. 90 Lanahmede Pty Ltd v Koch [2004] SASC 204 was a decision of the Full Court of the Supreme Court of South Australia (Perry, Bleby and Gray JJ). The defendant, Lanahmede Pty Ltd, was the occupier and operator of the Lyndoch Hotel. The plaintiff, Koch, went there after a work Christmas party on 18 December 1998. That function had finished at 4pm. The plaintiff and others went to the hotel to drink. Late in the afternoon a young man who had had too much to drink became aggressive. A fight broke out between the young man and another patron. The plaintiff felt some responsibility as he was the young man's work supervisor, and attempted to calm him down. The manager decided to turn the young man out. The plaintiff assisted in the removal, as he did not wish to see the young man get into further trouble. The manager returned to the hotel building, leaving the plaintiff and the young man struggling in the grassed area surrounding the hotel. During a continued scuffle, the plaintiff was injured. At first instance the plaintiff succeeded. The appeal was dismissed. At [2] Bleby J said: "There can be no doubt that Lanahmede was under a common law duty of care to its patrons. The content of that duty of care must be informed by the fact that patrons will, from to time, become affected by liquor and may become subject to aggressive, disorderly or offensive behaviour. The duty extends to taking steps to ensure that reasonable precautions are taken to ensure the safety from physical harm of those who may become so affected, as well as those who may be affected by such conduct of others." 91 Commencing at [32], Gray J cited Club Italia (Geelong) Inc v Ritchie and Cole in the High Court. At [34] his Honour continued: "The common law duty of care owed by Lanahmede included a duty to protect the club's patrons from offensive and disorderly conduct and to maintain adequate practices to deal with any incident arising by reason of intoxication or offensive or disorderly behaviour. [35] In the present case Lanahmede was under an admitted duty to take care with respect of its patrons. It could be expected that patrons would be affected by alcohol with an attendant risk of aggressive, offensive and disorderly behaviour. Lanahmede could also expect patrons' attention to be diverted to the social occasion particularly having regard to the Christmas celebrations. Patrons were likely to be relaxed and to have a reduced awareness of possible dangers. 5. [36] Lanahmede had an obligation to take care to protect its patrons against dangers from the consequences of unruly conduct and against the risk of injury that might arise. The risk of some untoward incident occurring was not far fetched. An evident danger was the unstable and damaged top sleeper of the retaining wall, the hole or depression adjacent to the top sleeper of the retaining wall and the unguarded vertical drop to the surface of Lyndoch Valley Rd." 92 At [42] his Honour said: "Lanahmede did not comply with its duty to control unruly or disorderly patrons. To leave the unruly patron on the verandah and grassed area fighting with Mr Koch was a breach of Lanahmede's common law duty of care. The situation should have been addressed and the unruly patron either controlled or removed so that he would not be a danger to others." 93 TAB Ltd v Atlis [2004] NSWCA 322 dealt, inter alia, with the question of the extent of the duty of care of the occupier of a betting shop, not the occupier of licensed premises. Mason P (dissenting) and Ipp JA (with whom Beazley JA agreed) accepted that the duty of care extended to the taking of reasonable measures to control rowdy and dangerous patrons whose activities had the potential to threaten the safety of other patrons. Commencing at [33] Ipp JA said: "As regards the duty of care question, the claimants relied on Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254. They submitted that the circumstances did not impose on the claimants a duty of care to take reasonable steps to prevent patrons of the TAB from suffering harm by reason of the criminal behaviour of third parties. [34] In Oxlade v Gosbridge Pty Ltd (unreported, NSWCA, 18 December 1998) Mason P said: 'It is exceptional for the law to impose a duty to exercise care in controlling a third party to prevent the third party doing damage to another (see generally Smith v Leurs (1945) 70 CLR 256). But a duty to exercise reasonable care to protect patrons has been imposed upon the manager of a hotel as regards intoxicated or dangerous customers. Whatever the outer limits of such duty, it encompasses the protection of a patron while he or she is on or departing from the licensed premises.' See also Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91; Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447 and Gordon v Tamworth Jockey Club [2003] Aust Torts Reports 81-698. [35] Such a duty is capable of being extended in scope. In my reasons in South Tweed Heads Rugby League Football Club Ltd v Cole (2002) 55 NSWLR 113(with which Heydon JA and Santow JA agreed) I said (at 137, [152]): '[The general duty on the part of the occupier to take reasonable care to avoid a foreseeable risk of injury to the entrant] ordinarily concerns risk of injury from the condition of the premises, but this is not an inevitable limitation on the scope of the duty. If, to the knowledge of the occupier, activities conducted on the premises bring about a risk of injury to the entrant, the circumstances may give rise to a duty of care wide enough to encompass a duty to take reasonable care to avoid a foreseeable risk of injury arising from those activities: Canterbury Municipal Council v Taylor [2002] NSWCA 24. Typically, the foreseeable risk of injury in such a case is the risk of physical injury directly caused by the known activities on the premises.' Nothing in the reasons of the High Court in this case ( Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 78 ALJR 933) is inconsistent with these remarks. [36] The opponent complains that the claimants negligently failed to control the continued presence of the two young men on the premises. The facts in the present case, therefore, differ fundamentally from Modbury . In fact they fall squarely within the possible exception to the rule in Modbury explained by Hayne J (at 293–294 [117]). [37] In Modbury Hayne J (at 292 [112]) observed that '[t]he occupier of land has power to control who enters and remains on the land and has power to control the state or condition of the land'. Hayne J remarked that that power of control established a relationship between occupier and entrant that could suffice to create a duty of care. [38] Accordingly, while it is true that no liquor was sold at the TAB, that is by no means conclusive of the question. [39] Foreseeability of harm is an important factor in this context. It is very much to the point that, by the time Mr Youngman spoke to the two men, he realised that their activities on the claimants' premises constituted a risk of injury to the other patrons. [40] In my view, the circumstances were such as to give rise to the imposition of a duty on the claimants to take reasonable steps to prevent injury to the TAB patrons from the activities of the two men. This conclusion is simply the product of the concept of reasonableness: see Tame v State of New South Wales (2002) 211 CLR 317 per Gleeson CJ at 330, [8]." 94 I was also referred to Broughton v Competitive Foods Australia Pty Ltd [2005] NSWCA 168, an unsuccessful appeal from a decision of Black DCJ. The facts are set out in the trial judge's reasons that are quoted by Brownie AJA at [17]: "On the 7th March 1998 the Plaintiff, and three of his friends, namely Kyle Lenton, Luke Haiser and Travis Smith attended a BBQ at Cronulla in the afternoon, they then left Cronulla during the evening to go into the city and took a taxi to Oxford Street. They visited various bars where they drank alcohol on their way down to George Street, where they were planning to meet some friends who had been taking part in a concert. They arrived in George Street too early to meet their friends, and accordingly spent a little time in some premises known as Galaxy World. While they were in there, an incident occurred between the Plaintiff's three friends and a group of other young men. While the situation was defused at those premises, by the intervention of a Security Guard with a dog, that did not prevent a larger group of young men from later confronting the Plaintiff and his three friends outside the George Street entrance to the premises known as Hungry Jack's. The Plaintiff himself had left his group at Galaxy World, because, as he put it, he was uneasy. When the trouble developed, he returned to join his friends. While he himself did nothing to cause trouble between the two groups, it is clear that the larger group resented either some physical contact which occurred between the two groups and/or some things which were said. The Plaintiff was not in any way responsible for this situation developing. As I have said, the Plaintiff and his friends proceeded along George Street but were confronted outside Hungry Jack's by a larger group, which may well have included others in addition to those who had been at Galaxy World. The larger group was clearly hostile to the Plaintiff and his friends and I accept that in the larger group two persons produced knives.…I do find that the Plaintiff and his three friends, went into Hungry Jack's where one of them spoke to a Security Guard, a Mr Pamata. The member of Plaintiff's Group who did the speaking, was Mr Lenton and his evidence was that he told the Security Guard: 'There's guys outside with knives, we're in a bit of trouble at the moment, I'm just wondering if you've got, basically I just asked him, can you please ring the police and get some help here, because we're in strife?' Mr Lenton, said that as soon as he told the Security Guard that they were in strife and there were knives the Security Guard was trying to get him out. He just said, 'Get out, you know don't be here. Get out.' The Security Guard than pushed Mr Lenton, and his three companions including the Plaintiff, back outside the premises and closed the door. Outside on the street, the larger group was waiting for the Plaintiff and his friends, a fight between the two groups broke out very quickly, instigated in my judgment by the larger group, in the course of which the Plaintiff was stabbed, with a knife several times and suffered life-threatening injuries." 95 Handley JA would not accept that any relevant duty of care was owed to plaintiff. He said at [2]: "In general the law does not impose legally enforceable duties on one citizen to help another. It does this in special and limited circumstances where one person has the care of another such as husbands and wives, parents and persons in loco parentis who have the care and custody of infant children, hospitals and patients, prison authorities and prisoners and so on. [3] Outside these special relationships a stranger is not obliged to feed the hungry, give water to the thirsty, look after the sick, visit the prisoners, or rescue those in peril. The moral commandment to love one's neighbour is not enforceable by law. As Lord Atkin said in Donoghue v Stevenson [1932] AC 562 , 580: 'The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question Who is my neighbour? receives a restricted reply.' [4] This case involves the law of real property, the rights of a person in lawful possession of land, and the law relating to trespass to the person. The familiar saying that an Englishman's home is his castle is also true of the home of an Australian and true of land and buildings owned and occupied by corporations. No one has a right of entry on the land of another except with the invitation or permission of the owner or occupier or authority expressly conferred by law. Subject to these exceptions the owner or occupier is legally entitled to refuse entry as he sees fit and to use reasonable force to prevent unauthorised entry. [5] An owner or occupier is also entitled to ask anyone who has been invited or permitted to enter to leave. An entrant who is asked to leave is bound to do so forthwith but must be given the necessary time to do this. An entrant who has been asked to leave cannot be treated as a trespasser unless he ignores the order or fails to comply within a reasonable time. However in those events the owner is entitled to use necessary but reasonable force to eject the trespasser. [6] It seems to me that the existing common law rules regulating the rights and duties of occupiers and lawful entrants cover the field and leave no room for irrevocable licenses in situations of emergency or duties of care enforceable in the tort of negligence." 96 Hodgson JA was prepared to accept that some duty of care might have arisen but, if it did, it had not been breached: " [10] One is entitled to protect one's land and to eject trespassers, so that to do so, using no more force than reasonably necessary, could be a breach of such a duty only in unusual circumstances, such as high probability of harm to a trespasser if ejected (as, for example, if one found a trespasser inside one's house and forceably put him or her outside, knowing that he or she would be killed or severely injured by poisonous gas then surrounding the house, which would in time disperse). Even then, if there were countervailing considerations, such as harm to property or persons on one's land if one did not eject the trespasser, such a duty would not necessarily be breached merely because, on calm reflection and with the wisdom of hindsight, it can be seen that it would have been better not to eject the person. [11] In my opinion, assuming there is such a duty, this case would be near the borderline. The security guard, acting reasonably, would have taken notice of the statement that the plaintiff and his friends were threatened by a gang with knives, and if he was in any doubt would have confirmed this by simply looking outside. There is no suggestion that the plaintiff and his friends were themselves acting objectionably at the time, so the possibility of harm or real inconvenience to staff and/or customers depended upon the possibility that the group outside would attempt to enter. [12] The security guard's account of the incident given to the police tends to suggest that he did not reasonably address the issues, and this account does not assist the Court in determining what would have been reasonable or unreasonable in the circumstances. The security guard did not give evidence at the hearing. The Court would have to decide for itself whether it is satisfied that a person, acting reasonably, would on the balance of probabilities have permitted the plaintiff and his friends to remain on the premises. [13] In my opinion, such a person would have appreciated that there was a group outside with knives threatening the plaintiff and his friends, and that there was a substantial probability of severe harm to the plaintiff and/or his friends if they were ejected. However, in my opinion such a person would properly have regarded his or her primary responsibility as being owed to staff and customers. In the heat of the moment, it would have been difficult for such a person to make an accurate assessment of the probability of the group outside attempting to enter the premises, of whether and/or how this could be prevented, of what might happen in that event, and of how all the opposing considerations properly balanced out. On calm reflection and with the wisdom of hindsight, I am inclined to think the right response would have been not to eject the plaintiff and his friends; but I am not satisfied that the ordinary reasonable person would have appreciated this in the heat of the moment. Accordingly, subject to one further question, the plaintiff has not established a breach of any duty of care by reason of his being ejected from the respondent's premises." 97 Brownie AJA referred to Modbury, Cole, and Drakulic and then said: "…it is difficult to see how it can be said that there was some duty of care that arose from the appellant being in the position of vulnerability, or in the respondents having assumed responsibility for his safety, or from there being some special relationship between the parties, recognised in some earlier case." 98 His Honour went on to assume that the respondent owed the appellant a duty of care not to evict him there and then but found there had been no breach of that duty. 99 The facts of the matter before me are quite different to those in Broughton. The plaintiffs had always intended to take a drink at the Hotel. Ms Nobles had entered the Hotel and had ordered them, not knowing of the first assault on Ms McNally. It was clearly their intention to consume those drinks until dissuaded from doing so by the lack of assistance from Mr Spears. The plaintiffs were lawful entrants to the Hotel, invitees. One wonders what the outcome may have been in Broughton if, instead of speaking to the security guard, the group of young men went to the counter and ordered hamburgers, but were assaulted when the other group entered the Hungry Jacks' premises. 100 Finally, there is the decision of Studdert J in T. Wagstaff v Haslam [2006] NSWSC 294, given on 21 April 2006 when I was preparing these reasons for judgment. His Honour was confronted with the same proposition which the defendant placed before me and came to the same conclusion that I have reached, by, if I may be permitted to say so, by a similar route. At [55] his Honour concluded: "I have come to the conclusion that the defendants did owe to the plaintiff a duty to exercise reasonable care for her safety whilst the plaintiff remained lawfully on the hotel premises during its trading hours. I so conclude having regard to the power which the defendants had to control those who entered upon the hotel premises and to determine who should remain upon the hotel premises. In this regard the statutory powers and obligations of the first defendant as licensee under s 103 and s 125 of the Liquor Act assume some significance. I consider that the defendants owed the plaintiff a duty such as extended to take reasonable measures to safeguard the plaintiff from foreseeable risk of harm from the conduct of intoxicated or unruly patrons on the hotel premises." 101 Mrs Wagstaff's claim was for physical and mental injury. She was not assaulted: her husband was. Mrs Wagstaff's injuries were sustained in these circumstances: " [11] At this stage there was a brief lull in proceedings and Mrs Wagstaff heard her husband say, "Let me go, let me go, I am not fighting, I am not fighting." Jay released the blond headed man who approached Mr Wagstaff and whilst he was still held punched him in the stomach. Mr Wagstaff's captor released him and the blond headed man grabbed Mr Wagstaff by his ponytail, swung him around and back onto the floor. Two other men jumped on top of Mr Wagstaff. [12] According to Mrs Wagstaff, she feared that her husband was going to die. He was on the ground with his hands behind his back, his ponytail was being twisted and his head with it, and there were the other men, as well as the blond, on top of her husband. According to Mrs Wagstaff, fearing for her husband's wellbeing, she approached the blond headed man and kicked him hard in the buttocks on six occasions and once in the testicles. In the course of doing so, Mrs Wagstaff put her foot through the front of her shoe. [13] What Mrs Wagstaff did was effective to secure her husband's release from the blond headed man, who stood up seeking to find out who had kicked him. He punched a bystander but was then told that it was Mrs Wagstaff who had kicked him and he started to pursue her. Mrs Wagstaff ran to the ladies' toilet and sought refuge inside, placing her back up against the door and her feet on the toilet bowl. There the plaintiff remained until one of the barmaids came into the toilet area to tell her that it was safe to come out. [14] When Mrs Wagstaff came out, she saw that the police had arrived. She noticed that her husband had blood dripping from his face and a cut on his forehead. 102 On the issue of forseeability his Honour said at [72]: "None of the three men assaulted the plaintiff. Any physical harm the plaintiff suffered was in consequence of her going to the defence of her husband. Mr Parker submitted that it was not reasonably foreseeable that the plaintiff would be harmed, referring to Chapman v Hearse (1961) 106 CLR 112, in particular at 120–121. However, that the plaintiff would go to her husband's aid in the event that he was attacked was, in my opinion, reasonably foreseeable, as was the foreseeability of harm to her in consequence of her intervention. I observe that any mental harm suffered by the plaintiff was suffered after the plaintiff witnessed her husband being put in peril by his assailants." 103 In the current matter, Ms Nobles was assaulted by gang members in the Hotel. It was foreseeable nevertheless that she should support her beloved, Ms McNally, in her attempt to retrieve the stolen wristwatch. 104 In conclusion, I find that the defendant's duty of care to its patrons extended to require it to take reasonable care to prevent a foreseeable risk of injury from the criminal or tortious acts of another patron. I have already found forseeability and preventability so that the cause of action in negligence is complete. In so doing, I have not overlooked the question of causation. If Mr Spears had taken the first decision to which I have referred (calling the police), the gang members would not have had the occasion to assault the plaintiffs. The same can be said of other steps which I have proposed above. N. A STATUTORY CAUSE OF ACTION? 105 Each plaintiff has pleaded a breach of statutory duties in this fashion: "8. Further or in the alternative the injury to the plaintiff was caused by the defendant's breach of statutory duties imposed by the Liquor Act 1982 (NSW) . PARTICULARS OF BREACH OF STATUTORY DUTIES 9. The defendant failed to comply with section 103(1) of the Liquor Act 1982 (NSW) in that he by himself or through his servants and agents failed to turn out the violent, quarrelsome and disorderly patron(s) who assaulted the plaintiff. 10. The defendant failed to comply with section 125(1)(b) of the Liquor Act 1982 (NSW) in that the defendant permitted violent and quarrelsome conduct on his licensed premises. 11. Further or in the alternative the plaintiff relies upon the failure of the defendant to comply with the statutory obligation imposed upon him by s.103(1) and s.125(1)(b) of the Liquor Act 1982 as evidence of negligence. 12. The plaintiff relies upon the facts otherwise pleaded in support of the allegations in paragraph 9, 10 and 11." 106 I have already referred to the statutory background and need not repeat it. The authorities establish that the alleged statutory causes of action do not exist. 107 The Liquor Ordinance 1975 (ACT), section 79 provided that the holder of a liquor license should not sell or supply liquor to a person in respect of whom there are reasonable grounds for believing that the person is intoxicated. This is similar to Liquor Act 1982 section 125(3). A statutory cause of action was alleged in Chordas but was rejected. Their Honours said at 102: "s 79 of the Liquor Ordinance does not confer a private right of action for damages for breach thereof. In Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405, Kitto J said that the question whether a statute conferred a private right of action for its breach depended upon 'the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation...' Section 79 appears in an Ordinance which is intended to protect the public interest by regulating the sale of intoxicating liquor, so as to protect those who by over-indulgence or because of youth or mental ill health are at risk from its abuse: see Commissioners of Police v Cartman [1896] 1 QB 655 at 657; Cundy v Le Cocq (1884) 13 QBD 207 at 209 and Luff v Oakley (1986) 82 FLR 91 at 101. Certainly, a breach of the statute may be used as evidence of a breach of the common law duty of care owed by the hotelkeeper to his patrons: see, for example, Menow v Honsberger (1969) 7 DLR (3d) 494, affirmed on appeal in Jordan House Ltd v Menow (1973) 38 DLR (3d) 105. However, in Abela v Giew (1965) 65 SR (NSW) 485, it was held that a breach of like regulations, those made under the Motor Traffic Act 1909 (NSW) , did not confer any private right of action upon persons injured by reason of a breach thereof. For similar reasons, s 79 does not confer a private right of action for damages resulting from its breach. Section 79 was enacted in the general public interest, not for the protection of persons who may be injured by the conduct of intoxicated persons." 108 In Boulter v P&O Resorts Pty Ltd [1998] QCA 51 Pincus JA (with whom McPherson JA and Fryberg J agreed) rejected a contention that the Liquor Act 1912 (Qld) section 78 created a cause of action. The verbiage of the statutory provision could be called "old fashioned" but it does contain elements similar to those found in section 125(1) of the NSW statute. His Honour found the reasoning in Chordas to be directly applicable. 109 The matter was referred to by Master Harrison (as she then was) in Preston v Star City Pty Ltd [1999] NSWSC 459. Her Honour was dealing with a motion to strike out a statement of claim or parts of it. The plaintiff alleged certain breaches of statutory duty arising under the Casino Control Act 1982. Her Honour said: "[24] The defendant asserted that an analogous provision to s.163 is s.125(3) of the Liquor Act 1982 (NSW) which states 'a person (whether or not he or she is a licensee) shall not, on licensed premises, sell or supply liquor to any person who is at the time, in a state of intoxication.' S.125(3) is similar to s.46 of the Liquor Act 1912 (NSW) which provided 'If any licensee permits drunkenness ... to take place in his licensed premises he should be liable ... to a penalty.' [25] The defendant referred to the authorities of Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91 at 102 and Soutter v P & O Resorts Pty Ltd & Anor (unreported, Court of Appeal, Queensland 13 March 1998). In Chordas the full Federal Court considered whether s.79 of the Liquor Ordinance conferred a private right of action for damages. The Federal Court of Appeal referred to Sovar and then said that s.79 appeared in an ordinance which was intended to protect the public interest by regulating the sale of intoxicating liquor, so as to protect those who by over indulgence or because of youth or mental ill-health are at risk from its abuse. The court referred to Abela v Giew (1965) 65 SR (NSW) 185 where it was held that a breach of like regulations, those made under the Motor Traffic Act 1909 (NSW) , did not confer any private right of action upon persons injured by reason of a breach thereof. The court concluded that for similar reasons s.79 did not confer a private right of action for damages resulting from its breach. S.79 was enacted in the general public interest not for the protection for persons who may be injured by the conduct of intoxicated persons. [26] In Soutter the court interpreted s.78 of the Liquor Act 1912 (Queensland) . The appellant was struck while standing on a dance floor by an energetic dancer. It held that in the present case it may well have been reasonable to treat the statute as intended to protect a particular class of persons, namely the respectable patrons of the licensed premises, from harm or annoyance as may be caused by the presence of disreputable characters, thieves drunkards and so forth. But the court held that it appeared a difficult step to go further to say that one should impute to the legislature an intention to grant a civil cause of action. One of the reasons for the reluctance to do so was that the categories of people who are to be kept off the premises are rather broadly indicated and that it was hardly to be expected a licensee would be able to discern without considerable investigation whether any of the customers on the premises from time to time might fall within one of the categories and it held that the provision in question did not rise to a civil action for its breach. [27] The plaintiff alleges that he became intoxicated to such an extent that he was physically sick in the toilets and fell over in the VIP room. It is my view that it is arguable that the liquor cases can be distinguished in that the liquor legislation is concerned with the consumption of alcohol not problems that can be caused when the consumption of alcohol is combined with gambling in a casino. It can also be argued that s.163 is directed to a particular class of persons namely those gamblers who are intoxicated and not the public at large. The difficulties experienced by an intoxicated gambler have been referred to in policy documents and the second reading speech relating to the Act. [28] As to whether a breach of s.163 gives rise to a private right, it is necessary to consider s.163 in the light of the other provisions of the Act including s.143(d) which specifically refers to one of the objects of the Authority as being to contain and control the potential of the casino to cause harm to the public interest and to individuals and families. S.163 (and s.70) of the Act may be considered in the light of the policy considerations such as the second reading speech and the report that gave rise to those provisions (see s.34 of the Interpretation Act 1987 (NSW )). Also, an intention to create a private right may arise on a balance of considerations and a whole range of circumstances. Without those facts and circumstances and the conduct of the parties being known, I cannot conclude that the plaintiff's argument in relation to s.163 action is untenable. Further, the obligation and responsibilities that casino operators and the Authority to have towards patrons particularly in circumstances where the patrons become intoxicated and continue to gamble have not been the subject of judicial determination. For these reasons, the argument that a breach of s.163 may give rise to a private right should be permitted to go to trial." This does not establish that the Liquor Act 1982 creates a statutory cause of action, merely that it was arguable that the Casino Control Act 1982 might. 110 In T. Wagstaff, Studdert J rejected the conclusion that a breach of statutory duty arising under the Liquor Act 1982 gave rise to a private cause of action, His Honour accepted that the reasoning in Chordas was applicable. 111 Accordingly I reject the submission that breaches of the Liquor Act 1982 give rise to the causes of action alleged by the plaintiffs. O. CONTRIBUTORY NEGLIGENCE 112 The defendant pleaded against each plaintiff contributory negligence, and provided the same particulars against each plaintiff: "Particulars of Contributory Negligence (a) Failing to depart from the defendant's premises when asked to do so. (b) Involving herself in an altercation. (c) Failure to take due regard for her own safety. (d) Re-entering the premises after being asked to leave. (e) Provoking trouble and/or the alleged assault." 113 As to (a) there was no suggestion in the evidence before me that either plaintiff was asked to leave the defendant's Hotel. That my have been an issue before Finnane J, but it was not an issue before me. 114 As to (b) it seems to me implausible that either plaintiff entered into an existing fight. It may be that what is alleged is that in some way either or each of the plaintiffs provoked a fight, but that is alleged in (e) 115 Particular (c) is not a particular at all – merely a further averment of negligence. 116 As to (d), it is true that each plaintiff re-entered the Hotel, but not after being asked to leave. 117 As to (e), how is it alleged that the plaintiffs provoked the assault? It might be thought that Ms Nobles' comment about "the yuppie on the phone" provoked the first assault on Ms McNally, but that cannot be negligence on the part of Ms McNally. Is it alleged that in re-entering the Hotel and asking for the return of her wristwatch Ms McNally provoked the assault? That was certainly not intended by her, nor would one objectively think that likely unless one had reason to believe that the gang member who had stolen the wristwatch or the gang members generally was or were prone to violence. 118 The problem about contributory negligence is that the defendant made no submission about it. Mr Barry, who addressed last, made the submission that the defendant had not submitted that either plaintiff was guilty of contributory negligence and there was no demur to that by Mr Colefax. Essentially, the defendant approached the matter on an all or nothing basis. 119 My disquiet on this issue is that my findings on forseeability indicate that a finding of contributory negligence ought be made in that the plaintiffs failed to perceive that if they re-entered the Hotel to seek to recover the wristwatch that they might again be the victims of violence. If such a finding were made, I would have to consider the relative responsibility of the defendant and each plaintiff in each case for the injuries suffered by that plaintiff. 120 I acknowledge that it is my duty to decide any question of law that arises, even if Counsel have not addressed it and I am aware of decisions such as Coulton v Holcombe (1986) 162 CLR 1 and Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631. However contributory negligence is a question of fact, not of law. Furthermore, were I to find contributory negligence and make an apportionment, the plaintiffs would be entitled to state that they had been denied natural justice: the grounds of contributory negligence were not argued, the evidence to support them not canvassed, the relative responsibility of each party not debated and no submission was put on their behalf because the defendant made no submission on any of these matters. In these circumstances the defendant must be held bound by the manner in which he has presented and argued his case. 121 P. DAMAGES (a) 10455/2001 McNally: $64,340 plus interest at 9% per annum from 13 September 2003 to 19 July 2006 (2 years and 310 days, or 2.85 years). If my mathematics be correct, the amount of interest is $16,503. The total sum is $80,843. (b) 10456/2001 Nobles: $430,362 plus interest at 9% per annum from 13 September 2003 to 19 July 2006 (2.85 years). If my mathematics be correct, the amount of interest is $110,388. The total sum is $540,750. 122 Q. ORDERS (a) 10455/2001 McNally v Spedding (i) Verdict and Judgment for the plaintiff against the defendant for $80,843. (ii) Order the defendant to pay the plaintiff's costs. (iii) Liberty to apply for any additional or ancillary orders. (b) 10456/2001 Nobles v Spedding (i) Verdict and Judgment for the plaintiff against the defendant for $540,750. (ii) Order the defendant to pay the plaintiff's costs. (iii) Liberty to apply for additional or ancillary orders. ********** 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.