New South Wales District Court CITATION: Perkins v Redmond Company Pty Ltd [2007] NSWDC 147 HEARING DATE(S): 14-18, 28-31 May, 1 June 2007 JUDGMENT DATE: 13 July 2007 JURISDICTION: Civil JUDGMENT OF: Rein SC DCJ DECISION: See [186]. CATCHWORDS: NEGLIGENCE - Altercation between two patrons on licensed premises resulting in injury to plaintiff - Whether licensee failed to provide adequate security at the premises - Content of duty of licensee - Relevance of non-compliance with conditions imposed on Place of Public Entertainment licence - Whether duty of care delegated to security company - Causation - Contributory negligence - Assessment of damages Civil Liability Act 2002, ss 5B, 5C, 5D LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1946, s 5 Law Reform (Miscellaneous Provisions) Act 1965, s 9 Liquor Act 1982, s 125 Abela v Giew [1965] NSWR 913; (1965) 65 SR (NSW) 485 Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 Browne v Dunn (1893) 6 R 67 Chappel v Hart (1998) 195 CLR 232; [1998] HCA 55 Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91 Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469; [2004] HCA 29 Collingwood Hotel Pty Ltd v O'Reilly [2007] NSWCA 155 Hampton Court Ltd v Crooks (1957) 97 CLR 367 Jones v Dunkel (1959) 101 CLR 298 Joslyn v Berryman (2003) 214 CLR 552; 198 ALR 137; [2003] HCA 34 Kirby v Sanderson Motors Pty Ltd (2002) 54 NSWLR 135; [2002] NSWCA 44 Leichhardt Municipal Council v Montgomery (2007) 233 ALR 200; [2007] HCA 6 CASES CITED: Manly Council v Byrne [2004] NSWCA 123 Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 Newcastle Entertainment Security Pty Ltd v Simpson (1999) Aust Torts Reports 81-528; [1999] NSWCA 351 Oxlade v Gosbridge Pty Ltd (NSWCA, 18/12/1998, unreported, BC9807725) Payne v Parker [1976] 1 NSWLR 191 Proprietors of Strata Plan 17226 v Drakulic (2002) 55 NSWLR 659; [2002] NSWCA 381 Scalise v Bezzina [2003] NSWCA 362 Spedding v Nobles [2007] NSWCA 29 Sweeney v Boylan Nominees Pty Ltd (2006) 227 ALR 46; [2006] HCA 19 Vairy v Wyong Shire Council (2005) 223 CLR 422; 221 ALR 711; [2005] HCA 62 Wagstaff v Haslam [2007] NSWCA 28 Water Board v Moustakas (1988) 180 CLR 491 Wyong Shire Council v Shirt (1980) 146 CLR 40 PARTIES: Andrew Stuart Perkins (Plaintiff) Redmond Company Pty Limited (Defendant) FILE NUMBER(S): 4733/05 COUNSEL: Mr J Anderson (Plaintiff) Mr M Joseph SC (Defendant) SOLICITORS: Koffels (Plaintiff) McCabe Terrill Lawyers Pty Limited (Defendant) JUDGMENT 1 The defendant, for whom Mr M Joseph SC appears, is the licensee and occupant of a licensed hotel known as St Patrick's Tavern, at 66 King St Sydney ("the tavern"). On Friday 6 August 2004 the plaintiff, for whom Mr J Anderson of counsel appears, was present at the tavern and was struck in the eye by a glass thrown by another customer of the tavern ("the assailant"). 2 The plaintiff, who was born on 28 June 1975 and is now 32 years of age, suffered significant injury to his eyeball which was lacerated by the glass, as was his eyelid, and had to undergo a reconstruction of the left eyeball that has, it is agreed, effectively lost him 90% of his vision in the left eye. 3 The assailant has never been identified or apprehended. 4 The plaintiff's claim against the defendant is essentially first that the level of security at the tavern was inadequate having regard to the nature of the premises, its location and history and the conditions imposed on it, and second that the response of the security guards who were there was inadequate: see T18.41-T19.8. 5 The defendant disputes that the level of security was inadequate or that the response of the security guard present near the dance floor was inadequate. The defendant points out that it was not the employer of the security guards – security was arranged by it with 24/7 Safe & Secure Pty Ltd ("Safe & Secure"), which provided the security guards and was their employer. 6 The plaintiff was taken from the tavern to Sydney Eye Hospital where surgery was performed on 7 August 2004, following which he was taken to Balmoral Naval Hospital at Mosman. Subsequently Dr Alexander P Hunyor operated on the plaintiff's left eye as a result of haemorrhage and detachment of the retina, performing a left pars plana vitrectomy, lens extraction, insertion of intraocular lens, scleral buckling, laser, and insertion of silicone oil at Dalcross Private Hospital on 24 August 2004. The loss of vision in the left eye is permanent (see report of 25/11/04, Exhibit "A", and report of Stuart Graham of 28/04/06, pp 127-128 Exhibit "A"). Dr Graham noted (at p 128): "… He reports other more physical activities have needed to be limited, for example he previously had service in Iraq and this required using ropes to exit helicopters. Without his stereo vision, reaching for a rope in mid air is quite dangerous and would not be advisable. In terms of social activities his ability to play ball sports is significantly reduced due to the loss of stereo vision. Monocular patients can learn to adapt to a large extent with monocular clues to depth and can return to the workforce and drive a car legally. However they are certainly not as adept as binocular normal subjects and there are definite limitations on their work related tasks and sports performance as a result. I think Mr Perkins is fit for work, but there would be certain restrictions regarding working at heights, working with ladders and ropes which may normally be part of his job in the Navy. He must avoid working with any scenario that might endanger his relatively normal right eye." 7 Dr Hunyor described the plaintiff as having "severe reduction of vision in the left eye" but would expect him to be able to resume many of the activities he previously enjoyed. He said he will have permanently reduced vision in his left eye "so that he has no useful central vision but does have some peripheral vision on the left side": p 126. 8 The plaintiff claims also to have suffered a psychological condition which I shall describe in more detail after I have dealt with liability. Liability Matters not in dispute 9 The following facts are not in dispute: (1) The plaintiff, at the time a naval petty officer, and his five naval colleagues arrived at the tavern in the evening (the plaintiff says at about 9 pm, the defendant says it must have been earlier at about 7 pm). The plaintiff had been conducting a course in relation to the CIWS naval weapons system over an eight month period and the colleagues were his students in that course. Three of those colleagues, Mr Troy Stephenson, Mr Paul Keating and Mr Steven Allen, gave evidence in the proceedings. (2) The tavern was far from full at that time. Some of the patrons were on the dance floor and some were near the bar: see T53.29-43 and T151-T152. By the time of the incident, the plaintiff's estimate of the number of people in the tavern was 100 (see T151-T152), but see also T53.29-43 in relation to the number of people dancing when the band started. The estimates of Mr Allen, Mr Stephenson and Mr Keating tended to indicate a lower number but the plaintiff was not challenged on his estimate and it is very difficult to estimate numbers accurately. Given the other evidence, 100 would be the number of patrons present at the time of the incident. (3) In the period of approximately half an hour before the incident the band commenced playing on the stage in front of the dance floor. (4) The incident occurred around 10.03 pm. (5) There was a security guard on the front door when the plaintiff and his entourage arrived. The front door is on the King Street level. (6) The bar and dance floor were on a lower level. The basic layout of the dance floor and bar can be seen in Exhibit "B". (7) It is agreed that there was a stage on the eastern side of the premises in approximately the position which it is depicted in Exhibit "B". The plaintiff does not accept that the stage was not rectangular at its northern end, but I think it is clear from the footage to which I shall later refer that it was not, and see too the unchallenged evidence of the licensee at T494.5. (8) There was at the time of the incident a security guard on the lower level and he was located near the foot of the stairs leading down from King Street. (9) The defendant, an operator of the tavern, had its own bar staff and manager but it did not employ the security guards. (10) The defendant had in place a system of closed circuit television cameras. The defendant had 14 such cameras in place on the night. (The plaintiff asserts that there were, in addition to the 14, another four cameras above the dance floor.) There was no evidence that anyone was or would normally be monitoring the images produced through those cameras. (11) The assailant ran from the tavern immediately he had thrown the glass and injured the plaintiff. He can be seen in the footage produced by the defendant, and is best seen in photo number 1 forming part of Exhibit "9", heading to the stairs at 22.03.35; making his way up the stairs in photo 4 at 22.03.38; and fleeing the building in photo 5 at 22.03.40. (12) There is no evidence to suggest that the assailant was himself affected by alcohol, or known to be a trouble maker or aggressive, or that he had caused any trouble prior to the altercation with the plaintiff. (13) The defendant accepts that the throwing of the glass by the assailant was a criminal act, and was not an act of self defence. (14) The Sydney City Council ("SCC") following input from the NSW Police, in 2001, imposed conditions on the issue of a Place of Public Entertainment licence ("POPE licence") issued by the SCC. Those conditions, which were in place at the time of the incident, required the defendant to engage eight security officers from 8 pm onwards on Friday, Saturday and Sunday nights, two of whom were required to man the front entrance, two to patrol King St near the entrance and four to patrol inside the premises: see Exhibit "A" p 122. Matters in dispute on liability 10 The following factual matters are in dispute in relation to liability: (1) The degree of intoxication of the plaintiff as at the time of the incident. (2) The time at which the plaintiff arrived with his friends at the tavern. (3) The level of responsibility of the plaintiff for the confrontation. (4) The precise location of the plaintiff at the time of the incident. This has significance only in relation to the question of whether the incident occurred in a place at which it could not be observed by the security guard who was on duty, and the degree of visibility generally. (5) The precise amount of time which transpired from the first physical step in the altercation to the injury to the eye. (6) Whether the four ceiling cameras located over the area that was formerly part of the dance floor (and is now a poker machine area) were in place on 6 August 2004. (7) The significance of incidents reported to the police in the three years before the incident involving the plaintiff. (8) The significance of the POPE conditions. (9) The conclusion to be drawn from the evidence or lack of it regarding the security arrangements. 11 The issues which arise are: (1) Did the defendant owe the plaintiff a duty of care? (2) If so, what was the content of that duty? (3) Was such duty of care as was owed by the defendant to the plaintiff breached? (4) Was the duty of care a delegable duty? (5) If so, was it delegated? (6) If the answer to (3) is yes, and the answer to (4) or (5) is no, was the breach causative of the injury? (7) Did the plaintiff contribute to the injury which he suffered within the meaning of s 5 of the Law Reform (Miscellaneous Provisions) Act 1946, and if so, what is the just and equitable apportionment as between the plaintiff and defendant? Plaintiff's version 12 The plaintiff's version of events is that whilst he was on the dance floor dancing in a fashion by himself rather than with someone, the assailant bumped, with a slight bump, into the plaintiff's back twice over a short period of time and that the plaintiff then became annoyed and pushed the assailant back by putting his left arm on the assailant's chest, saying "back off" at that time. The assailant then started punching the plaintiff eight to ten times (T57.36) and the plaintiff sought to defend himself by holding up his left arm to protect his head (unsuccessfully in the case of one or two blows), but whilst still retaining in his right hand his glass of beer. He says that he managed to separate himself from the assailant and that he thought the incident was over and then said to the assailant in a relatively loud but not overly loud voice (T185.50) "You effing arsehole" ("effing" being used in evidence, I took it, out of politeness to the Court and its staff) or words of a similar abusive kind that were "not nice" (see T185.40), following which the assailant picked up a glass and threw it from a distance of approximately two metres (see the evidence of Mr Keating at T283.15), which hit the plaintiff in the forehead and eye. The photos of the plaintiff (Exhibits "C" and "D") show the laceration around the eye, clearly a result of the glass having hit the plaintiff, and also a split lip. On the plaintiff's version, all of this incident from his first shove to the glass in his eye took place over the space of 25-30 seconds: see T57.55, T58.46-49. 13 The plaintiff said in his evidence that he was, during the incident, located between the pillars seen in Exhibit "B" where he has marked a "P". 14 The defendant attacked the credibility of the plaintiff on a number of fronts and relevant to the description of the incident, particularly in relation to: (1) the plaintiff's assertion that he was not particularly intoxicated; (2) the number of blows struck by the assailant; (3) the asserted absence of any punches being thrown by the plaintiff; (4) the manner in which the plaintiff and the assailant were separated; (5) the location of the plaintiff at the time of the incident; (6) the length of time which the incident took. 15 There were a number of matters which cause me to doubt the reliability of the plaintiff as a witness, namely: (1) The plaintiff's evidence that he had been punched eight to ten times (T57.55) did not sit comfortably with his statement to the police on 8 August 2004 in which he described the incident as follows (Exhibit "7"): "The VIC told police he only remembers bits and pieces but remembers a scuffle with other males. He remembers pushing a male away from him because this other male was bigger than him he then remembers a 'thud' into his face and he knew he was in trouble." or with his statement to his solicitor on 2 September 2004 (three weeks after the incident) that he had been punched a couple of times: see T173. (2) The plaintiff's assertion that he did not mean by "couple" what is normally meant, ie "twice", and his answers in cross examination at T173-T174 about this discrepancy were unconvincing. The exaggeration of the number of punches was, I think, an attempt to extend the period of the altercation. Mr Allen, one of the witnesses called by the plaintiff said that the assailant had hit the plaintiff about five or six times (T395.10), but he had told the police a "few punches", and he retreated from five or six (at T409.5-14) to more than two. Mr Keating in chief said five or six punches were thrown by the assailant (T282.8-10) but at T314.30-36 he indicated his uncertainty. (3) The plaintiff's assertion in chief that he had only four light beers over nine hours (from 1 pm to 10 pm), which expanded to six in cross examination, was difficult to accept given a number of matters. They are: (a) An ambulance officer who attended on the plaintiff wrote in her notes "ETOH ++", which stands for a "lot of" or a "fair bit of" alcohol (ethyl alcohol) (see Exhibit "3" and T253.30-34). That assessment by the ambulance officer, Ms Bird, was not a result of any detailed examination or of course any blood alcohol test, and there were factors which undercut its significance – the plaintiff was noted as 15/15 on the Glasgow Coma Scale, meaning even though he had had a quantity of alcohol he was still alert to what was going on (T254.49), but it is nevertheless of some relevance. There is also the note of a casualty doctor at the eye hospital: "v. intoxicated poor cooperation" (standing for very intoxicated) in relation to the plaintiff: Exhibit "3", and see the evidence of Mr Emmanuel Doromal at T35. These notes are consistent with a lunch, and after that, afternoon and evening attendances at five different venues including the tavern, in an end-of-course celebration of naval men with no pressing obligations, of which the plaintiff and three of his colleagues gave evidence. The plaintiff's assertion that they were attending these various establishments "to talk" (T193.4) was not convincing. (b) The plaintiff's lack of recollection of the events as demonstrated by Exhibit "7" is some further corroboration of his lack of sobriety. (c) If his evidence that he stood with a beer in his hand whilst being struck is accepted (he accepted that to have done so was "silly" (see T172.40), and which seemed to be unlikely although it would support his contention that he spilled liquor on himself), that, and his annoyance and what he admitted was his own unreasonable conduct (see T159.15), are further matters which tend to point to a more significant degree of intoxication than the plaintiff and his colleagues would have the Court believe was the case. The plaintiff's wife, Ms Lamont, who visited the plaintiff in hospital gave no evidence that would undermine the correctness of the doctor's entry (or the ambulance officer's entry). (d) I take into account the fact that whatever was the level of intoxication that the plaintiff and his companions exhibited prior to entry into the tavern, it did not lead to them being excluded from the premises by the security guard at the entrance or removed from the tavern, although the absence of removal is consistent with a very limited security presence, a matter to which I shall return. (e) Mr Allen admitted that he had drunk more than one bourbon and Coke in each of the places they had visited and that they had been at the tavern for approximately two and a half hours (see T401.44-47) (as he had said in his statement to police: T402.57-T403.2), and the plaintiff (and I infer the other members of the group) had been drinking at the tavern (T402.55). It does appear that on the plaintiff's evidence of attendances and time elapsed, and Mr Allen's evidence; that the plaintiff must have been at the tavern by approximately 7.30 pm and not 9 pm as the plaintiff asserts. That would also have an effect on his reliability on the question of how many drinks he had had. (4) The plaintiff's assertion that his memory of the night was good (see T125.40-43) did not sit well with his report to the police two days after the incident, and his assertion that he had had a conversation with the security guard at the door seemed somewhat contrived – it was not corroborated by any of his other colleagues – as an attempt to create the impression that his memory of the night was good. (5) The plaintiff denied having gone to football games but Mr Keating says he went with the plaintiff to a Swans game at Telstra Stadium exhibiting no concern: T287-T288. (6) His dealing with the confrontational aspect of his first response to the bumping (T158-T159) in which he agreed ultimately that his behaviour looks like it was confrontational (at T159.11), and his brief attempt to assert he did not know what "confrontational" meant. (7) He denied having any training in combat (T155.39) but this was contradicted by Mr Keating's evidence of what training is given to boarding parties (T292-T293), and the plaintiff's evidence that he had been a member of boarding parties. (8) The plaintiff's assertion (at T124.23) that the position of Mr Tischler, the man whose job he is likely to take over, is exactly the same as his, was demonstrated to be incorrect: T169.50-T170. (9) Whilst not a major matter, the plaintiff's evidence in chief about his family's involvement in the Navy (see T37.54-T38, T70.10) gave the impression that they had remained in the Navy for all of their careers, which was not the position: see T116. (10) He said initially in answer to the question whether he had spoken to his colleagues about the night in question "No, not really" (T154.45), but at T156.15 he said he had spoken about the amount of alcohol. The plaintiff denied having had any conversation about the night of the incident with Mr Allen, Mr Stephenson or Mr Keating, and they also denied having had any such conversation with the plaintiff. This seems surprising, particularly give the plaintiff's contact with Mr Keating over a long period of time. 16 Mr Joseph relied on, as an additional important issue on credibility, an assertion that the plaintiff's positioning of himself near pillars (or "pylons" as the plaintiff called them) seemed to have an air of reconstruction, particularly since at a time when he answered the defendant's request for particulars and provided a sketch (see Exhibit "5") no reference was made to the pillars at all. Mr Joseph put to the plaintiff that the pillars had only come into play once the plaintiff had become aware that, contrary to his prior belief, there was in fact a security guard downstairs at the time of the incident. The plaintiff's friends in their evidence were not consistent as to the plaintiff's precise location: see Mr Allen at T40, T397, Mr Stephenson at T242-T243 and Mr Keating at T280, Exhibit "F" and Exhibit "H", although this is hardly surprising given the passage of time. Whilst I think that there may be some element of reconstruction there are three factors which lead me to exclude this as a factor negative to the plaintiff's credibility: (1) the plaintiff was not given (as he should have been) a proper plan of the area when he answered the particulars; (2) it has not been demonstrated as a fact that the plaintiff was not located behind a pillar out of sight of the security guard – if anything the evidence rather supports that contention; (3) the fact that pillars when shown on a plan assisted in location of the position of the altercation is not so surprising – and their absence on a sketch when their location is not known and not important is not surprising either. 17 The matters to which I have referred have only a limited bearing on the common law duty of care owed by the defendant. Whatever the plaintiff's level of intoxication, it is not suggested by the defendant that he was not entitled to remain on the premises of the tavern. Wherever he was standing, on the balance of probabilities, the attack and the lead up to it were not observed by the defendant's staff or the security guard in the basement. The number of punches that the assailant launched, whether or not the plaintiff struck back or merely defended himself in response to the assailant's punches, and the extent of the plaintiff's intoxication, have no direct bearing on the liability of the defendant – the only substantive relevance of it is to the question of how long the incident took and what would have been observable to a security guard. I think that the plaintiff's evidence that he was struck eight to ten times by the assailant is an exaggeration, which I do not accept, but I did not find his estimate of effectively 25-30 seconds as itself obviously exaggerated and even less so if there was a period of "facing off" as Mr Allen described it. Estimates of time, particularly as short as seconds, are inherently difficult to make by anyone, even without any deliberate exaggeration and the effect of alcohol on the witnesses is a further factor. It is very difficult to assess how long the incident took, but it was brief and on the balance of probabilities in the order of 30 seconds but not more than 40 seconds, allowing for the fact that the plaintiff was probably restrained by one or more of his friends and separated from the assailant before the glass was thrown, and that there had been a period of "facing off" before punches were thrown. 18 Although I raised the question of applicability of the intoxication provisions of the Civil Liability Act 2002, the defendant appeared to accept that s 50 was not available to it (T16-T17) and no mention was made of this part of the Act in submissions, written or oral. 19 The defendant does not dispute the core element of the plaintiff's account of what occurred on the night. I find that the plaintiff was bumped slightly in the back twice when he was on the dance floor (T56-T57) and that he became annoyed and placed his open hand on the assailant's chest, pushed him back and at the same time said "back off". The assailant then punched the plaintiff two or three times, one of the punches landing on the plaintiff's lip. The assailant and the plaintiff became separated and the plaintiff at a distance of a few metres then said to the assailant "you effing arsehole" (again using a polite means of recording the words said) or something similarly abusive, whereupon (and I infer, on the balance of probabilities, most likely as a result of that abuse) the assailant grabbed a glass from a nearby table or shelf and threw it at the plaintiff, hitting him in the left eye. 20 I find that the incident from the first shove to the throwing of the glass took approximately 30 seconds, and no more than 40 seconds. 21 The plaintiff and his friends say they saw no security guard downstairs. That the plaintiff was not aware of the presence of a guard downstairs is borne out by the instructions that were given to Mr Smith, the expert retained on his behalf. There is undisputed evidence that there was one guard downstairs at the time of the incident but that does not mean that the plaintiff or his friends did see a security guard that night. It is entirely possible that there was no guard downstairs when they arrived downstairs, and that positioned where he was for some or all of the time he was there, he did not take up a position observable to the plaintiff and his friends. 22 Neither of the plaintiff's friends who were close by (Mr Stephenson was further away dancing with a female: T230) heard anything said by the plaintiff, and no coherent version of how the fight developed or was stopped emerged from their evidence, with Mr Allen indicating even that the plaintiff may have traded punches (T408.10-41). According to Mr Allen (T407.50-55) there was a period of "standing off" and stares, which I took to mean before the throwing of punches by the assailant (not after the punches were thrown as the defendant's submissions contended), and the plaintiff and Mr Allen said the assailant was led away by a friend of the assailant before the glass was thrown (T395, T409.40) and there were people restraining the plaintiff too (T410.40). Mr Keating said he saw no-one restrain either the assailant or the plaintiff (T318). The plaintiff's evidence was he pushed the assailant away. I think there is force in Mr Joseph's contention that the intervention of one or more persons is a more likely explanation of how the fighting stopped before the glass was thrown, but the only evidence consistent with that is Mr Allen's evidence. I accept that there was, on the balance of probabilities, a separation of the plaintiff and the assailant by others – no-one suggests that a security guard or guard were involved or present at that time. View of the premises 23 A view of the premises was held at the request of the plaintiff. The layout of the premises has been altered because the area that was formerly a dance floor has been made a poker machine area. A glass brick wall has been placed between the two pillars which I have mentioned, in effect enclosing them, and glass screens have been placed a few metres behind that brick wall to the south and parallel to it. The defendant, through Mr Eric Redmond ("Eric Redmond"), says that four additional cameras have been added above the poker machine area when it was created after refurbishments. The plaintiff does not accept that they have been added only after the incident. There is no documentary evidence before the Court that points to cameras having been installed after the incident. 24 It was agreed that the distance between the front of the bar and the pillars is 3.22 metres, and that the distance between the eastern wall onto which the stage backed and the first pillar was 2 metres. 25 The entrance to the tavern is on King Street. There is a small foyer with a broad, but fairly short, set of steps leading down to the basement. As noted, a plan of the basement is in evidence as Exhibit "B". The tavern is then, mainly located in the basement. 26 In the bottom right hand corner of Exhibit "B" the stairs can be seen. At the bottom of the stairs leading down to the basement is a stage, which extends to the back wall (the back wall is parallel to King Street but at a lower level). To the north of the stairs is the commencement of the bar. In the area between the bar and the stage was the dance floor. Where the dance floor began is not clear, as it seems that there was no differing flooring. To the west was located a restaurant area (marked as "upper level" on Exhibit "B"). In the area of the dance floor there were two pillars. They have agreed dimensions of 600 mm x 700 mm. These may have offered a boundary of sorts to the northern side of the dance floor. The CCTV footage 27 The evidence of Eric Redmond, a director of the defendant and in charge of equipment at the tavern, was that all footage from each of the 14 cameras was retained for a period of 40 days, and wiped by being recorded over at the end of that period: T438.7-14. On the night of the incident the police requested footage of the incident to assist in apprehension of the assailant. To this end Eric Redmond downloaded 59 seconds of footage from Camera No 5, located above the stairs, and footage from cameras at the street entrance to the tavern. The five pieces of footage are found in original form on Exhibit "L" and in a form playable as a DVD on Exhibit "E". Eric Redmond also downloaded stills from the footage available (Exhibit "9"), and later from Exhibit "L" as Exhibit "13". He retained the footage and stills which he downloaded on the night, but did not retain any other portions of the original footage, and the tapes were re-used in accordance with the tavern's ordinary reuse approach. On the evidence of Eric Redmond there was no footage from or near the dance floor or bar other than that which is seen as the fifth episode on Exhibit "L" and on the DVD. 28 There are several versions of Exhibit "B", the plan of the premises, in the exhibits. Exhibit "10" is a version on which Eric Redmond has noted with a "C" the position of 14 cameras in place on the night of the incident. The plaintiff accepts that all of the cameras marked were in the positions so marked, but does not accept that there were no other cameras, asserting that four cameras observed on the view as located above the dance floor area were in place on the night of the incident. 29 Both parties were in agreement that the assailant can be seen in the footage. He appears to be a young man and is wearing a cast on his right hand or wrist. He is observed making his way up the stairs from the basement level to the street level and racing out of the tavern into King Street. It is apparent in the footage that the security guard located on the basement level near the foot of the stairs has become aware of an incident – moves quickly towards the area of the incident and passes the assailant who makes his way to the stairs along the side of the bar. It appears that the security guard has become aware of the presence of the assailant after he has passed him on his way to the scene of the incident because the guard is observed almost immediately after he has passed the assailant coming back towards the stairs and chasing after the assailant. The security guard from downstairs is seen in another of the five clips at the entrance to the tavern with a second security guard and is pointing in the direction that the assailant has fled. 30 The security camera gives a somewhat distorted picture of the area downstairs but in addition to depicting what I have just described, it also shows the presence of the stage. On the stage is what appears to be a reflex speaker (for use by the band) and near the first pillar is a box that would appear to be a large speaker. There appears to be little access to the dance floor from where the guard is standing and in fact at the time of reacting to the incident he heads off in a northerly direction through the throng of patrons next to the bar rather than making his way through any path if there indeed be one – none is visible – next to the stage. The other matter is that the guard can be seen in the video looking up the stairs for a time up until approximately 28 seconds into the video. I have mentioned that the fifth and most important clip is 59 seconds long. That is the period for which it runs. Eric Redmond says that the 59 seconds is real time – ie that what takes 59 seconds to play on the screen depicts 59 seconds of events. The plaintiff does not accept that this is so. Mr Anderson at one point argued that since the camera records at four frames per second – the footage depicts six minutes in real time because it is shot at four frames per second but shown at 24 frames per second. 31 The suggestion that the clip depicts six minutes in real time was not supported by any evidence and was not pressed, presumably because it is clear that the assailant fled the scene within far less time than that. I am not persuaded that Eric Redmond's evidence that the 59 seconds of footage does represent 59 seconds of real time is unreliable and I accordingly accept his evidence on this point. 32 There is another element of the footage which only becomes apparent on close analysis. At about 33 seconds into the clip, towards the top left hand corner of the screen a crouching figure can be made out. That would seem to be the plaintiff after he was hit in the eye with the glass. The plaintiff cannot be seen before that moment in the footage. The legislative and regulatory environment 33 Section 125 of the Liquor Act 1982 provides: " 125 Conduct on licensed premises (1) A licensee shall not: (a) permit his or her licensed premises to be used for the purposes of prostitution, or (b) permit intoxication, or any indecent, violent or quarrelsome conduct , on his or her licensed premises. Maximum penalty: 20 penalty units in the case of an offence under paragraph (a) or 50 penalty units in the case of an offence under paragraph (b). (2) A person shall not use any part of licensed premises for the purposes of prostitution. Maximum penalty: 20 penalty units. (3) A person (whether or not he or she is the licensee) shall not, on licensed premises, sell or supply liquor to any person who is at the time in a state of intoxication. Maximum penalty: 50 penalty units. (4) Where a person is intoxicated on licensed premises, the licensee shall be deemed to have permitted intoxication on the licensed premises unless the licensee proves that the licensee and his or her employees took the steps set out in subsection (4A) or all other reasonable steps to prevent intoxication on the licensed premises. (4A) For the purposes of subsection (4), the following are the relevant steps: (a) asked the intoxicated person to leave the premises, (b) contacted, or attempted to contact, a police officer for assistance in removing the person from the premises, (c) refused to serve the person any alcohol after becoming aware that the person was intoxicated. (5) In the application of this section to a caterer's licence, a reference to licensed premises does not include private domestic premises except in subsection (3)." [emphasis added] 34 The licence issued to the defendant in force in August 2004 is found at pp 35-38 of Exhibit "A". The licence is a licence to sell alcoholic beverages. If a hotel or tavern in the CBD wishes to provide entertainment at the premises in the form of live music or "DJ" music, it is required to obtain a POPE licence. 35 The defendant did obtain a POPE licence and as at the date of the incident (and for some considerable time before that), it contained relevantly the following conditions (see Exhibit "A" p 122): "8. On Friday, Saturday and Sunday after 8.00pm two security officers are to remain at the entrance/exit door of the licensed premises until cease of trading for that day. 9. On Friday, Saturday and Sunday evenings after 8.00pm four security officers are to continually patrol all areas of the licensed premises until cease of trading for that day. 10. On Friday, Saturday and Sunday evenings after 8.00pm two security officers are to continually patrol the northern side footpath area of King Street between George and York Streets and assist in the quiet and good order of the neighbourhood. These patrols are to continue until thirty minutes after the premises has closed. 11. Whilst security are employed all patrons entering the premises will be subject to a search by hand held or walk through metal detectors." [emphasis added] 36 The defendant did not comply with the requirements of the POPE licence notwithstanding that he was fully aware of its terms. The licensee, Mr Jeffrey Redmond ("Jeffrey Redmond"), gave evidence about this, with which I shall deal later. History of incidents at the tavern 37 The plaintiff tendered as part of Exhibit "A" documents produced by the Commissioner of Police in answer to a subpoena, correspondence and/or records relating to violence at the tavern in the period 6 August 2001 to 6 August 2004. Some of the documents were withdrawn and some I ruled were not relevant as they dealt with incidents that had their genesis on the street outside the tavern rather than inside. Some of the remaining documents related to matters such as the proper recording of incidents in the book and an excessive number of patrons. 38 At p 54 of Exhibit "A" is a COPS report of 31 July 2004. One of the security officers supplied an expired security licence – saying he had applied for a new one. The other security guard was found to be the subject of an outstanding warrant. The fact that he had come under police notice since that time was mentioned. There is nothing to indicate that the matter was raised with anyone other than the security guards themselves. 39 At p 61 of Exhibit "A" is a COPS report of 15 March 2004 from which it appears that a man was escorted from the premises by a security guard who he alleges punched and kicked him in the head when he was on the ground. The report notes that the security roster log was sighted. Footage of the incident and the lead up to it was provided by the licensee and master security licence holder – revealing that the victim was aggressive to security and constantly "encroaching on their personal space with his face right in their face". One of the security guards punched the victim (p 63 Exhibit "A") but the victim could not positively identify the guard involved. Another security guard was involved in the scuffle. The report notes that police "will again speak with the master security licence holder to identify the security officer involved", but there is nothing to indicate that they in fact did so or that the licensee was contacted. 40 At p 64 of Exhibit "A" is a COPS report of 29 April 2004 involving an assault by a security officer on a patron. The police did meet with Jeffrey Redmond and Mr Dunning and ask for details of the security guard appearing in the video – the master licensee "insinuated that the POI is an off-duty guard from another premises and his staff are not willing to supply police with his details". Police advised the licensee that they "had decided to impose a number of conditions on his licence relating to security, unless positive identification is given to the police of the POI involved in this serious assault" (p 64). There is no evidence that the police did act upon the threat. 41 At pp 65-68 of Exhibit "A" is a COPS report of 15 March 2004 relating to an assault occasioning grievous bodily harm in the tavern. The report is critical of the tavern staff because they did not call police, and when the victim reported the incident the police found that the staff had cleared the area. There were copies of the security log and stills available. The report said (p 68): "Licensing police have spoken to the owner and master security licence holder relating to the preservation of the crime scene and notification of police after an incident … Licensing police will be contacting all St Pat's staff involved pursuant to sec 104 of the Liquor Act." 42 Pages 69-70 of Exhibit "A" refer to an incident on 28 February 2004 in which a victim was attacked on the dance floor. According to the report (p 70): "The melee continued for several minutes before security separated both parties. … Club security stated that they did not witness the start of the incident and could not help Police adjudicate on who was the aggressor. Police reviewed security footage however due to positioning of the cameras no footage in the dance floor area is available." 43 Pages 71-72 of Exhibit "A" deal with an assault at the tavern, which when the police arrived had not been recorded in the incident book, nor had the security roster been recorded. The manager, Ms Elizabeth Hayes, and a guard were reminded of the obligations "in regards to the incident book". 44 At p 78 of Exhibit "A" is a COPS report noting a visit by police at 1.30 am and five security officers on duty on 1 November 2003. The incident book was sighted and signed. 45 At p 83 of Exhibit "A" is a COPS report dated 5 July 2003 relating to an assault around 3.30 am claimed by a patron to have been committed by security guards. The guards claimed that the "victim" had jumped up onto the stage and the guards had asked him to leave, with the victim reacting aggressively, throwing punches, following which there was a struggle and the "victim" was ejected. The report notes (p 84): "Police enquired as to possible video footage of the incident to which they were informed that there was none in the areas that the incident began and finished." 46 At p 85 of Exhibit "A" is a COPS report dated 9 June 2003 relating to an assault on 18 May 2003 at 1 am. 47 At pp 91-95 of Exhibit "A" is a COPS report dated 10 May 2003 relating to an assault occasioning grievous bodily harm. The report describes a fight between patrons on the dance floor, where the assailant has fled through the front entrance. "The incident occurred in a section of the hotel that is known for poor quality video footage". The report is critical of the hotel staff for cleaning up the crime scene prior to police arrival (p 94). There is also a report by the victim that he heard one of the staff say, "I want him to walk out of here. There's no way he's going on a stretcher", and heard staff disputing whether or not to call police. He is reported as saying "he was subjected to someone attempting to pour water down his throat on several occasions" (p 95). 48 At p 96 of Exhibit "A" is a COPS report dated 16 June 2002 detailing an assault occasioning actual bodily harm on a patron at the tavern on 16 June 2002. 49 At p 99 is a COPS report of 20 December 2001 of an assault occasioning actual bodily harm on 20 December 2001 on a patron at 1.30 am. 50 At p 102 is a similar report of 16 December 2001. 51 At pp 103-104 is a COPS report of 17 December 2001 relating to an incident at 1.55 am that morning. There was an incident on the dance floor – with a punch being thrown – security guards did become involved and stopped the fight. There is nothing in the report critical of the security personnel. 52 At p 105 is a COPS report dated 16 September 2001 of an incident on 20 August 2001 at 1.05 am – involving an assault occasioning grievous bodily harm. The club was very crowded with men from various football clubs. The victim was "king hit" when he endeavoured to approach a female friend who had been spat upon by an unknown male. He suffered significant injury. The victim was "carried outside and placed on the footpath", which would seem inappropriate given that he sustained a fractured skull and was not fully conscious. When the police arrived there were approximately 50 persons fighting outside the club (p 106). 53 At pp 108-109 is a report dated 31 August 2001 of a failure by the manager (Ms Elizabeth Hayes) to remove several dozen patrons seriously affected by intoxicating liquor. The police required the immediate cessation of trading, which was effected. The report continues (p 109): "Police then interviewed the POI. During that interview it became obvious to police that the licensee was employing young duty managers who had little experience in this field and unaware of their responsibilities. Further inquiries are to be made with the licensee as it appears he is employing these managers in what might be an attempt to have them penalised for the actions and trading practices of the premises. The POI has not yet had the benefit of a warning on the C.O.P.S. and whilst her actions, or lack of action on this occasion may amount to a serious breach of the hotel's conditions police must issue a warning before taking further action. Police will speak to the licensee further about this recent practice of employing inexperienced managers with a view of notifying the courts of such practice and taking action via the courts against the licensee." 54 At pp 110-112 of Exhibit "A" is a COPS report dated 20 August 2001 of an assault occasioning actual bodily harm at 1.30 am. It deals with the same night as that at p 105 and involves a brawl involving about 30 people inside the hotel. 55 At p 113 of Exhibit "A" is a COPS report of 5 August 2001 relating to visit on that date by police to the tavern, where according to the report the police found "numerous well intoxicated persons". They spoke to Eric Redmond believing him to be the licensee, and noted that he agreed "that there were far too many intoxicated persons on the premises", and the POI informed he would be breached over this matter. The police warned that if it occurred again they would "take further immediate action against the hotel" (p 113). It went on: "Infringements issued for numerous intoxicated persons". 56 The plaintiff points to this material to establish that assaults, including violent assaults, were not uncommon at the tavern in the three years before the incident involving the plaintiff. He also relies on it to show that the defendant's "house" was not run as it should have been – on two occasions the police found a large number of patrons heavily intoxicated and spoke to the manager on one occasion and Eric Redmond (believing him to be the licensee), and that the police had issued infringement notices. 57 What the material to which I have referred does establish is that assaults, even violent assaults, leading to the need for police intervention, occurred within three years prior to the incident of 6 August 2004 and hence could be expected to occur from time to time. That possibility would have had to be expected in any event having regard to the location of the premises and nature of the business (ie selling alcohol to persons in the age group of 20-40 with DJ music and live music provided: see the report of Mr Smith, Exhibit "A"). The defendant does not dispute that it was foreseeable that a patron might become aggressive to another patron, without any appropriate basis, and launch into an unjustifiable attack, but says that that foreseeability does not impose a duty on the defendant to prevent any such possibility. The defendant, it was submitted by Mr Joseph, does not and could not be expected to guarantee that no such incidents will occur. 58 The plaintiff also seeks to rely on the incident reports to point to the repeated inability of the defendant to provide footage over the dance floor, and it is relied on to attack Jeffrey Redmond's credit since he says that he was not aware of any of these occasions of breach and/or warnings. 59 The defendant submits that the police reports must be approached with care since they often contain material which is hearsay and which is difficult to refute. The defendant says that over a three year period there are not that many incidents considering the hotel is open all hours and has up to 292 patrons on a busy Friday or Saturday night. 60 This case is not concerned with whether the defendant did or did not properly maintain its incident book or security log or whether on occasions it permitted more patrons in the hotel than its licence permitted. It is concerned with whether, if the defendant owed a duty to the plaintiff in relation to the provision of security, it breached that duty, and whether the breach, if established, was causative of the injury suffered by the plaintiff. Missing documents 61 The defendant seeks to establish what in fact were the security arrangements in place on the night by reference, inter alia, to Exhibit "4". The defendant did not tender or produce in answer to a Notice to Produce an incidents book or a security register (the two may be different things) nor any of the protocols for security that the defendant's expert Mr Jennings said were commonly in writing. The defendant did not tender or produce in an answer to a Notice to Produce any footage from a location above the dance floor. The defendant did not produce in answer to a subpoena any documents relating to the security arrangements in place. Explanations have been proffered by the defendant, and the plaintiff attacks those explanations. I shall deal with these contested matters. 62 The plaintiff called into question the defendant's assertion that no footage of the incident is available other than that which is now in evidence. The plaintiff points to the existence now of the four cameras above the area that was the dance floor and says that Eric Redmond's evidence should not be accepted and that the defendant has deliberately withheld or wiped the evidence of the incident that was available to it because it will not assist its case. 63 The suggestion that the defendant has deliberately withheld or removed evidence is a serious one. The plaintiff in support of the attack upon the bona fides and credit of the defendant's witnesses points to a number of other matters beyond the current location of the cameras. These are: (i) the circumstances in which Exhibit "4" became an exhibit; (ii) the circumstances in which pp 11-34 of Exhibit "A" came to be held by the defendant; and (iii) the explanation given by Eric Redmond as to why there were no cameras above the dance floor, ie that lighting was poor. Exhibit "4" 64 Exhibit "4" headed "St Patrick's Tavern – City – Security Hours week ending 08/08/04 – week 32", appears to be a listing of security officers and the number of hours worked by those officers at the tavern (and other establishments owned by the defendant). 65 On the first day of the hearing when Mr Anderson sought to tender the plaintiff's bundle of documents (which became Exhibit "A"), Mr Joseph for the defendant sought to add to the tender Exhibit "4". He said in describing it at T85.39: "it appears to be in the form of an invoice to pay a certain company - 24/7 Safe & Secure Pty Limited - and identifies the sum involved." 66 The subpoena addressed to the defendant (pp 1-5 of Exhibit "A") had the following paragraphs: "The documents or things you must produce are as follows: 1. Any and all agreements, correspondence, copy correspondence, memoranda and/or other documents comprising and/or relating to the engagement and/or provision of security personnel at the St Patrick's Tavern as at 6 August 2004. 2. Any and all copy group certificates, PPS declarations and/or other records relating to the employment of staff engaged at the St Patrick's Tavern as at 6 August 2004. 3. The defendant's staff roster for the St Patrick's Tavern in relation to the night of 6 August 2004. 4. Any and all documents containing and/or relating to assessments conducted by the defendant before 6 August 2004 in relation to security risks and/or violent behaviours at the St Patrick's Tavern. 5. Any and all documents comprising and/or relating to the issue of any licence under the Liquor Act 1982 in respect of the St Patrick's Tavern and/or in relation to any renewal and/or variation of any such licence." 67 Mr Joseph at T79.22 said: "Included in the report [an investigator's report] are documents that fall within that description [ie para 1 of the subpoena] for which the subpoena was issued, not produced but came into our possession after the subpoena was produced. I wish to provide those to the court as to being a proper answer to the subpoena." 68 Mr Joseph argued at that point that it would be misleading to the Court to receive the documents contained in Tab 4 of Exhibit "A" in answer to the subpoena, if the document in question and then proffered was not added: T81.7-14, T86.45. 69 When I inquired of Mr Joseph why it had not been produced in answer to the subpoena he said at T80.23-28: "I haven't got instructions on that, your Honour. Your Honour, can I just indicate there was a fire, there was an administrative block. I haven't got instructions on that. I don't want to make up [excuses], your Honour, but the reality is there's no issue that there were security people involved on this night." 70 Exhibit "4" was tendered by the plaintiff as Exhibit "A" on an application to adjourn the proceedings (which application was refused). When Mr Joseph sought to tender the document in the substantive hearing it was admitted without objection: T 94.1. 71 When Eric Redmond gave evidence he said at T446 that there was a fire at St Patrick's Tavern Seven Hills on 17 October 2004 in which the defendant lost documents – "all our incident reports for the year 2004 that were being [stored] there" and "All our records … Of three hotels" "including the city": T447. 72 At T474 he was asked about Exhibit "4" and how that had not been destroyed, saying that the Exhibit "4" was not the actual document but rather was a reconstruction by obtaining the pay details from Safe & Secure. He said he had helped in the reconstruction as had Ms Anne Rice, the office manager, located at Mount Druitt. Ms Rice had rung Safe & Secure and obtained details of the amount paid and then worked backwards: T 476. 73 Eric Redmond said that it was not possible that the security company had been paid for hours not worked because (T477.19): "… we won't pay a cent until the manager of the night has approved it and then the manager who faxes and sends the originals through has approved it as well. So we had their signatures on the securities card at the time to prove that they were there." 74 Towards the close of evidence in the defendant's case (T631) Mr Anderson called on Mr Joseph to withdraw the tender of Exhibit "4", which Mr Anderson said had been misdescribed as an invoice and ought not have been permitted to be received since it was not in existence at the time of the subpoena (see Eric Redmond T475.40) and was only a reconstruction. 75 Mr Joseph declined to withdraw the tender noting that when Eric Redmond had given evidence about the document (describing it in terms different to that which Mr Joseph had been instructed), no application was then made for the tender to be withdrawn and that there had been no insistence on production of the source documents from Safe & Secure, or more accurately the liquidator of Safe & Secure. 76 Mr Joseph pointed out that Mr Anderson had not challenged the veracity of Eric Redmond's evidence as to how the document had been created, nor the accuracy of what was recorded, nor had he sought leave to have issued a subpoena to the liquidator of Safe & Secure. Further he had not challenged Eric Redmond's assertion that money would not be paid to Safe & Secure unless the manager had approved it. 77 The defendant asserted that there was a fire at Seven Hills, and claims it destroyed the incident book and/or security register and the original records of payment to Safe & Secure. It may seem somewhat convenient that these documents are not available, and yet the documents at pp 11-34 are available, and it raises a suspicion that the defendant has not produced documents for other reasons, but there is no evidence before me that points to Eric Redmond's evidence that there was a fire (corroborated by Jeffrey Redmond) being false. Although there was an attack on their credit on other matters which may have some justification, those matters are limited (eg the explanation of lighting as a reason why no security cameras were in place over the dance floor, the circumstances in which Eric Redmond was understood by police to be the licensee of the tavern, Jeffrey Redmond's assertion that he was never told about an incident at the tavern, and his assertion that Mr Dunning told him not to worry about the POPE conditions), and even if found to be established, do not in my view amount to a discrediting of their testimony such as to warrant rejection of their evidence of the fire and destruction of the documents. The plaintiff did not seek to subpoena documents relating to the fire, such as a police report or insurance claim. Since the defendant did, through the evidence of the Redmonds give evidence of a fire – it was for the plaintiff I think, to seek to establish that the asserted fire was a fiction. Mr Anderson did not put to either Eric Redmond or Jeffrey Redmond that the fire was a fiction. 78 Jeffrey Redmond said at T506.40 that he was not aware that Exhibit "4" had been reconstructed. He said that he was 90-98 per cent certain the incident book had been destroyed in the fire: T515.46-51. 79 From Exhibit "4" it appears that between 8 pm and 10 pm there were two security guards on duty, one of whom it is undisputed was on the King Street door, and that between 10 pm and 10.15 pm there were three security guards on duty, "Langi", "Freddy B" and "Raymond" (see T506.5-14), with Raymond to start at 10 pm. There is nothing to indicate that Raymond did go downstairs or was supposed to go downstairs, or what his duties were supposed to be from 10 pm if he was in fact present at the tavern. Although he does not appear in the footage and hence it would appear that he was not on duty at the entrance or the stairs, it is quite possible that he was supposed to be located as an extra person on the door rather than downstairs. 80 As at the time of the incident (it occurred at approximately 10.03 pm) there was undoubtedly one security guard at the entrance on King St and one guard in the basement. I find on the balance of probabilities that from 7.30 pm until the time of the incident there was only one guard on duty downstairs. 81 There were areas of the dance floor the guard could not see prior to or after the throwing of the glass: see Exhibit "B" as marked by Mr Smith, the plaintiff's expert witness. That marking does not take into account the restrictive effect of the speakers to which I have referred. There is no evidence that the security guard did see the altercation or the lead up to it, and the unchallenged evidence is that he did not attend upon the plaintiff at or near the point of attack. Logically either the guard did see the altercation and failed to attend or did not see it. I think it unlikely that he did see it but did nothing, it being on the balance of probabilities more likely that he did not see it developing. Given that at least part of his time depicted in the footage was spent looking up the stairs, and given that he was the only person on duty downstairs covering the stairs, the bar and the dance floor, that is hardly surprising. The fact that the assailant passed by him close to the bar without the guard stopping him reinforces the likelihood that the security officer did not see the incident. I do not accept Mr Joseph's submission that it can be inferred that the guard "saw some disturbance" and that the plaintiff relevantly was "observable" – all that can be inferred from the video is that the guard became aware somehow of the fact that there had been an incident. The assailant was well away from the position of the altercation when he passed the guard. The arrangements for security in place 82 No documents were produced evidencing or dealing with the relationship between the defendant and Safe & Secure, other than Exhibit "4". No security guard who was present was called nor was any member of the defendant's staff actually present that night called, other than Eric Redmond who attended the premises well after the incident: see T438.25. Mr Anderson points to the failure of the defendant to call evidence from any of these potential witnesses and submitted that a Jones v Dunkel (1959) 101 CLR 298 inference should be drawn. He also made the point that evidence on this topic should be weighed in accordance with the power of the defendant to adduce it: see Blatch v Archer (1774) 1 Cowp 63; 98 ER 969, approved in Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 371. 83 There are only four items of evidence relevant to the arrangements for security: (1) the evidence of Jeffrey Redmond as to his arrangements with Safe & Secure; (2) the evidence of Jeffrey Redmond as to what he had observed on previous occasions; (3) the five video clips (and the photographs); (4) Exhibit "4". 84 Jeffrey Redmond's evidence in chief on the issue of security in place was as follows. He had been the licensee of the tavern for approximately ten years. He owned four other hotels but was not the licensee of those other hotels: T485. He engaged Safe & Secure in 1997 to be the security contractor. Mr Dunning, the principal of Safe & Secure, held a Master Licence (a requirement for a security provider or the licensee if he is to provide security himself): T485. Jeffrey Redmond obtained a copy of the Master Licence of Mr Dunning (see Exhibit "12"). Jeffrey Redmond said that he displayed the document on his premises: T486. 85 Jeffrey Redmond said he had observed Safe & Secure's security over 13 years (ie even prior to him becoming the licensee). He said he had "ongoing discussion of refinement and requirements" regarding security: T486.40-45. In his evidence at T487.11-T488.36 and T488.46-T490.45, Jeffrey Redmond said that he discussed the type of security he required, told Mr Dunning about the type of clientele (ie 20-40 year olds), the proposed entertainment, that he wanted a female friendly venue and to make sure that males were not "unruly". He would discuss security once fortnightly, at least. He said at T488-T490: "Q. What did you observe in particular, in respect of the security personnel? A. The security personnel basically provided the atmosphere of security that I was looking for, for our clientele. There's some of those requirements, for example, were more of a deterrent, so that we actually tried to have Mr Dunning provide large security as a deterrent . Q. You mean physically large? A. Physically large. And the process in the formula seemed to be working quite well. Q. Had you observed the security personnel on the Friday night? A. Yes. Q. Had you observed them in the - personnel in the period on the Friday night between 8 and 10? A. Yes. Q. Was it your understanding as at 6 August 2004 that there'd be two security personnel on duty at that time? A. Was it 8pm? Q. To 10pm? A. Oh sorry, 8 to 10pm. The - my understanding was pretty much a staggered security arrangement depending on the crowd build up. The specific number may have changed on special occasions. Q. But on this night, on 6 August 2004, was it your expectation there'd be two security personnel between 8 and 10pm? A. At least. Yes. Q. Thereafter, was there going to be further security personnel coming on duty? A. Yes. Q. Why was that? A. The -- Q. Why did you expect there to be a change? A. The security -- Q. After 10 o'clock? A. -- yes, the security industry standard basically provided for one security guard per 100, and that's my understanding. OBJECTION. LEGAL ARGUMENT. QUESTION ALLOWED A. So, one in 100 and at those times, we may have needed the extra security to come onboard. Q. From your knowledge, what was the patron numbers that's being the 8 to 10 period, as opposed to after 10? A. Well, our maximum capacity was 290 odd. Q. That wasn't my question Mr Redmond. The question was, what was your knowledge of patron numbers between 8 and 10 as opposed to after 10pm? A. Well below a hundred. Q. And after 10pm? A. Possibly over, over a hundred. Q. At what point? A. Say at around 11 o'clock. Q. When you did observe the security personnel on a Friday night, in that period 8 to 10, where were they? Stationed or - what were they doing? OBJECTION Q. On a Friday night, between 8 and 10pm - I thought I made that clear, had you made observations as to the conduct of the security personnel? A. Yes. OBJECTION. SHOULD SPECIFY WHICH FRIDAY NIGHT. QUESTION ALLOWED A. Generally, there would be a doorman at the door. And then we would have -- Q. What do you observe - not we would have? What did you observe? A. Sorry, sorry. I observed a doorman, and then I observed a security officer moving around the premises. Q. Can you recall whether he remained stationary for any periods of time? A. Short period of time, they would take up a particular station, and then rotate." 86 Jeffrey Redmond said that the night manager would report to the day manager and the day manager would report to him "and then I'd communicate any requirements to the contractor, the security contractor … If the particular security personnel, as far as the night manager was concerned, didn't seem suitable for the venue then basically it would be reported. If there were any incident that was worth bringing to my attention then the day manager would report it to me": T490-T491. 87 At T492 Jeffrey Redmond was asked about the POPE licence requirements and said that he had never provided security to the level required by that licence. His evidence was that the premises were attended by personnel from the City of Sydney and the police, and they never raised failure to comply with conditions: T492-T493. 88 He said that he never sought to comply with the conditions (T493.12-16): "After discussions with my security contractor I went by his [advice] insofar as the level of security that we already employed was sufficient and the level of security that was being applied by the Council was not reasonable." 89 He said he was never prosecuted for breach and the failure to comply was never raised even though their attendance was at times when the conditions would apply: T493.44-46. 90 He said that he was never informed by police prior to August 2004 that they thought there "was insufficient level of security": T494.51. At T502.40 in cross examination Mr Anderson asked Jeffrey Redmond if he was saying that he left the decision as to how many security guards were to be employed "entirely to the discretion of 24/7" to which Jeffrey Redmond responded affirmatively. 91 In relation to the conditions imposed by the POPE licence there was the following exchange between Jeffrey Redmond and Mr Anderson at T503.30-T504.38: "Q. What you are saying Mr Dunning said to you, oh no, no, don't worry about providing eight security guards, and paying us for eight security guards, when the Council requires it because really you don't need that many. Is that what you're telling his Honour, happened? A. My recollection of the conversation was that we only had entertainment three nights a week. They required security seven nights a week. The end result, they require eight security guards per one - per hundred people, where our licence only allowed us up to 290 odd people, so I ended up agreeing with the contractor that it was - the conditions were unreasonable. Q. Are you telling his Honour that you took the advice of Mr Dunning to employ two or three security guards on a particular Friday night when there was music being played, in lieu of the eight required by the Council. Is that what you just told his Honour? A. Yes. Q. I suggest to you sir, that ultimately, it was your decision as to how many security personnel would be provided by the company, correct? That is, ultimately you would instruct Mr Dunning how many you were prepared to employ at that particular time, correct? A. No. Q. You deny that, do you? A. Could you ask the question again, to be sure? Q. I'm suggesting to you that it was ultimately your decision as to how many security personnel would be provided by Mr Dunning at the premises at any particular time, correct? A. I would rely on Mr Dunning's advice, and then ultimately approve his advice . Q. Are you telling his Honour, on oath, that Mr Dunning said to you, look Council's issued this licence, but take it from me, you can ignore that because it's really excessive. Is that what you're saying? A. Yes. Q. And are you saying to his Honour that Mr Dunning said, look, if we complied with the Council licence, I can employ eight security guards for you, but I'd suggest you don't need that and two will be sufficient. Is that what you are saying? A. He made me aware that it was unreasonable. He made me aware that the Council requirements were not reasonable. Q. He did discuss the Council requirements with you, did he? A. I discussed the Council requirements with him. Q. You brought the Council requirements to his knowledge? A. That's right. Q. Because you're aware that the Council had imposed as a condition upon your entertainment licence, that you did supply a particular number of security personnel, correct? A. Could you repeat the question, sir.? Q. You were aware that the Council had imposed, as a condition upon the issue of your entertainment licence, a condition that you provide a particular number of security personnel? A. Yes." 92 There followed some questions by me at T504.40-T505.15: "HIS HONOUR Q. What was your understanding of what would occur if Council did ascertain that they were not the same number as had been required by the licence conditions? A. The first -- Q. What was the worst that could happen to you, as you understood it? A. -- well, if we provided say security guards, at the - a lot of times in some instances there would be more security guards than patrons. Q. I understand. That's one of the reasons you didn't like that. You thought those conditions were unreasonable, is that so? A. Yes. Q. What I'm asking you is, at the time you received notice of the conditions of council, what did you understand might occur if you didn't follow the requirements laid down by council? A. We would have to close the business. Q. Did you take any steps to appeal the imposition of the conditions? A. I talked to the council officer that gave the - put the conditions on, and he more or less indicated that the Licensing Police had asked him to put them on, so that the licence would be allowed to continue on. But they -- Q. Did that give you the understanding that an appeal would be hopeless? A. Yes." 93 The law relating to Jones v Dunkel (1959) 101 CLR 298 was reviewed in the Court of Appeal per Campbell J, with whom Beazley JA and Pearlman AJA agreed, in Manly Council v Byrne [2004] NSWCA 123. There are two inferences that can (but not must) be drawn when a witness is not called by a party and the conditions for application of the principle exist: (1) the Court may infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness; (2) the Court may draw with greater confidence any inference unfavourable to the party who failed to call the witness if that witness seems to be in a position to cast light on whether that inference should properly be drawn. 94 The conditions for the operation of the principle are those laid down in Payne v Parker [1976] 1 NSWLR 191 at 201 per Glass JA (and approved in Manly Council v Byrne): "(a) the missing witness would be expected to be called by one party rather than the other, (b) his evidence would elucidate a particular matter, (c) his absence is unexplained." 95 Glass JA said this about the first condition at 201-202: "(7) The first condition is also described as existing where it would be natural for one party to produce the witness: Wigmore , par 286, or the witness would be expected to be available to one party rather than the other: O'Donnell v Reichard , or where the circumstances excuse one party from calling the witness, but require the other party to call him: ibid, or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him: ibid, R v Burdett , or where the witness' knowledge may be regarded as the knowledge of one party rather than the other: Earle v Castlemaine District Community Hospital , or where his absence should be regarded as adverse to the case of one party rather than the other: ibid. It has been observed that the higher the missing witness stands in the confidence of one party, the more reason there will be for thinking that his knowledge is available to that party rather than to his adversary: ibid. If the witness is equally available to both parties, for example, a police officer, the condition, generally speaking, stands unsatisfied. There is, however, some judicial opinion that this is not necessarily so: ibid. Evidence capable of satisfying this condition has been held to exist in relation to a party's foreman: Cafe v Australian Portland Cement Pty Ltd ; his safety officer: Earle v Castlemaine District Community Hospital ; his accountant: Steele v Mirror Newspapers Ltd ; his treating doctor: O'Donnell v Reichard ." [footnotes omitted] 96 Whilst it is true that the defendant cross claimed against Safe & Secure, which would prima facie indicate that Safe & Secure could not be viewed as in the same camp as the defendant, in this case the defendant denies negligence and asserts that it delegated its duty to Safe & Secure. In my view it would have been natural to expect the defendant to have called employees of Safe & Secure to support the assertion that there was no negligence – no attempt was made to lead evidence that the security guards present or supposed to be present on the night were not available after due enquiry. Having said that, it is relevant to note that the defendant has not challenged the core element of the plaintiff's claims and what has been challenged is limited. 97 Mr Joseph in his written submissions indicated that the defendant would not be contending that there were three guards on duty at the time of the incident, notwithstanding Exhibit "4", but to avoid any doubt about that concession I should note that I do not think that Exhibit "4" provides support for the proposition that the security guard, who was according to that document supposed to have started at 10 pm, was assigned or was supposed to be assigned downstairs. I think that the inference that he was not assigned downstairs or was not to be assigned downstairs can more be comfortably drawn in the absence of evidence from the defendant's night manager or any of the employees of Safe & Secure. Even if that view were incorrect, there is no evidence that there was to be more than one guard up to 10 pm, and the absence of any deterrence up to 10 pm is relevant. The breach of licence 98 There was an issue about what use could be made by the plaintiff of the letter from the police to Sydney City Council: p 114 Exhibit "A". Mr Anderson had said (see T340) that he relied on the letter only as background to the imposition of conditions. Jeffrey Redmond (at T504.40-T505.15) said that the council officer had informed him that the police had requested the imposition of conditions and that as a result of his discussions with the council officer he believed an appeal would be hopeless. Jeffrey Redmond's conclusion and the information upon which it was based sits strangely with his assertions that the council and the police were aware that the licence conditions were not complied with and yet did nothing. The history of events at the tavern, to which I have referred, and the nature of the tavern's business and its location, I think it can be inferred from the conversation to which Jeffrey Redmond referred, led the police to make the recommendation for increased security. 99 There is no dispute that the defendant was in breach of its POPE licence, having only two security guards at the premises on the night in question at 10.03 pm, when eight were required. The plaintiff accepted, on the authority of Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91 and Abela v Giew [1965] NSWR 913; (1965) 65 SR (NSW) 485, that it has no cause of action based on the failure to abide by the conditions, but it was submitted on behalf of the plaintiff that just as evidence of breach of a regulation or statutory provision can be evidence of a breach of duty, so too can breach of a licence. 100 I accept the plaintiff's submission. It seems to me that the council considered that having regard to the recommendations of the police who were aware of the history of violence in the tavern as demonstrated in the COPS reports (it matters not whether that history was typical of late night venues in the city or was atypical), a minimum of eight security guards were required to provide an appropriate level of security for the tavern patrons. 101 In my view, the plaintiff is entitled to rely on the conditions of the licence as a matter relevant to whether or not the level of security actually provided was sufficient. This is not to say that other evidence might not be called or relied on to establish that the level required by the council was excessive, but in my view it is relevant that the police and the council were of the view that eight guards were required from 8 pm on a Friday night when live music (or DJ music) was being provided. The defendant's evidence of what it and Safe & Secure, to whom it claimed it had delegated responsibilities for security, did on the night or generally in relation to ensuring sufficient staff to deal with the risks of violence on a Friday night, was very limited. The expert evidence 102 The plaintiff relied on the reports of Mr Peter M Smith. His first report is at pp 138-151 of Exhibit "A", and his second report is at pp 152-156 of Exhibit "A". He was cross examined by Mr Joseph (T332-T371). 103 The defendant relied on the reports of Mr R Jennings (Exhibit "1"). Mr Jennings was cross examined by Mr Anderson (T595-T622). 104 Mr Smith's report noted that in many cases conditions of a liquor licence or entertainment approval "will specify security personnel numbers and a function or role those security personnel are required to undertake", but he had not been provided with any information in regard to the conditions: p 139 Exhibit "A". 105 Mr Smith noted that a security risk assessment was required but none had been provided. He regarded as relevant to the risk the following factors: (a) geographical location; (b) the likely patron demographic; (c) the time of the day, week and year. 106 The tavern was located in the CBD and in a part with the highest risk of alcohol related violence. The demographics of the customer base 20-29 is the highest risk group and Friday night between 9 pm and 6 am is the high risk period with peak assault time around midnight. 107 Mr Smith said (pp 142-143 Exhibit "A"): "There are a number of factors that need to be considered when determining the numbers of security personnel required for a venue including; the history of violence at the venue, the number of attending patrons and the size and layout of the venue in terms of appropriate security response times and the ability for security to maintain constant visual surveillance of all areas simultaneously. While there is no documented Standard or specific legislation that identifies what the security 'span of control' for licensed premises should be, it has widely been accepted as industry practice that the 'span of control' for a venue (which experience relatively few incidents of violence) is 1+1:100 i.e. one security officer per one hundred patrons, plus one other officer, usually deployed on the main ingress/egress point. In 2001, the Victorian Supreme Court of Appeal accepted the ratio of 1+1:100 as being an acceptable security span of control for licensed premises. [ Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447; [2001] VSCA 180] Where a venue experiences significant incidents of violence (in terms of incident numbers and frequency) and/or the size and layout of the venue is such that it negatively impacts on the effectiveness of security personnel when deployed at 1+1:100, the security span of control must be increased in order to properly address or meet the level of risk in which the venue operates. … Accepting that the Tavern's size and layout does not negatively impact on the normal function of security (in terms of surveillance and response time) and assuming the Tavern does not have an extensive history of violence then a security span of control of 1+1:100 would be applicable." 108 Mr Smith indicated that higher risk areas of the premises include toilets, stairs, dance floors, pool tables and bar areas: pp 143-144 Exhibit "A". 109 Mr Smith analysed the statements made by the plaintiff and Mr Benjamin Nicol, who did not give evidence, and expressed the view that there would have been sufficient time "for a security guard (if deployed in the internal area of the tavern) to respond to the incident. Had this occurred it is quite likely that the assailant would not have thrown the glass given the presence of security": p 145 Exhibit "A". 110 It is clear from the report that Mr Smith was proceeding on the basis that there was one security guard at the front entrance but no-one downstairs. 111 It might have been thought that since Mr Smith seemed to regard two guards as appropriate (one upstairs and one downstairs) and in accordance with what he described as the widely accepted industry practice of 1+1:100, the true facts would have led him to conclude that security was adequate. He had however qualified the 1+1:100 by noting that this was for venues "which experience relatively few incidents of violence", and saying that the adequacy of guards would depend on the layout of the premises. 112 Mr Smith said (p 145 Exhibit "A"): "Typically when a fight breaks out in a crowded area, crowd surge can be observed i.e. where persons not involved in the confrontation move en mass away from those who are involved. Crowd surge is the most significant indicator of a violent event occurrence and one that requires an immediate response from security." 113 By the time of his supplementary report, Mr Smith had seen the CCTV footage (Exhibit "E") and the POPE licence. He said (p 153 Exhibit "A"): "Whilst no information has been provided as to the assessment criteria used to determine the Defendant's security span of control (as stipulated in the Approval) it does tend to infer that the Defendant's premises has an operational environment that warrants an above average security personnel requirement." 114 He said this (p 154 Exhibit "A"): "With regards to the location of the security officer deployed at the bottom of the stairs, it would appear that whilst he has a reasonable range of vision it does not allow for the simultaneous observation of the entire floor which, presumably was one of the assessment criteria taken into account when the security span of control (as stipulated in the Approval) was determined. Again based on the CCTV vision, this position appears to be in a centred position which creates zones to the front and rear making simultaneous observation impossible. Add to this the presence of what appears to be a sizeable ceiling to floor structural column which restricts the forward looking range of vision coupled with the 'patron number monitoring' duties of this position, makes this location a less than ideal position to observe patron behaviour in the downstairs area. Taking into account the monitoring duties of the security officer at the bottom of the stairs and the difficulties in maintaining effective crowd observation from this location, it would be essential to have additional security personnel dedicated to crowd observation within the downstairs area, a conclusion which is clearly supported by the internal security requirements of the Approval conditions. Accepting that there was a second security officer employed in the downstairs area at the time, there would still be significant gaps in maintaining constant crowd observation particularly as this security officer patrolled areas to the rearward of the security officer located at the stairs or when checking toilets." 115 Mr Smith was taxed upon his change of opinion but he explained that he had not previously been provided with the conditions of the POPE licence or details of the layout, nor had he even then been provided with the history of incidents at the tavern. He indicated on Exhibit "B" in yellow highlighter where the guard's vision would be obscured if he were standing at the foot of the stairs. He indicated where he would place security guards if he had four security guards: see Exhibit "B". 116 Mr Smith was also taxed on his reference to crowd surge and his unwillingness to agree that absence of crowd surge made a big difference. 117 Mr Richard Jennings (like Mr Smith, a former police officer with extensive experience of security in clubs), in his report (Exhibit "1"), rejected the existence of any industry standard or practice. He said (pp 7-8 of his report of 14/02/07): "I believe it is essential to have a security officer in the vicinity of the dance floor where altercations often occur as a result of bumping and accidental interference on the dance floor with the modern energetic styles of dance adopted by night club patrons especially the young males. In this matter there does appear to have been a security officer in close proximity to the crowd near the bar and just a short distance from the dance floor. When the first indications of problems occurred he is seen to run through the crowd close to the bar and parallel to that bar, getting to where the plaintiff [was semble] within about three or four seconds. I do not think this could have been achieved any faster. It is quite possible that the officer did not see the punches thrown nor the pushing, as he cannot possibly observe the 105 or so patrons who were present at the same time. The objective of such guard placement is to see or be brought to the attention of any minor disturbance and then step in before it can reasonably escalate in as short a time frame as it is practically possible to do so. As described, the whole event of punches, pushing and glass throwing may have occurred within just a few seconds and this officer would have had no reasonable chance of intervening mid incident. … It is recommended that a security presence is supplied reasonably close to the bar of a nightclub in order to take charge of any situation which may develop from an intoxicated patron trying to buy further drinks. However, this security presence cannot reasonably stand at the bar where people are trying to buy drinks or impede the normal lawful business of the nightclub." 118 Mr Jennings then said (p 8 of his report of 14/02/07): "One cannot reasonably stipulate how many guards such a nightclub needs without careful analysis of all the risk factors. It is alleged that there were only about 150 persons present of the 292 allowed and therefore the club was at only half capacity. This is reasonable grounds for assuming that a smaller number of guards is required to control 150 people as is required to control 292. In any case, regardless of how many guards were on duty at the time, there was a guard observing the area of the incident closely and he did manage to get to the scene within a few seconds. Unfortunately the whole incident had taken just a few seconds and the guard did not have sufficient warning of the impending escalation of violence to get there in time." 119 He said that if there were a number of security personnel working in a site it is accepted industry practice to lay down the accepted protocols and behaviour standards in a formal document (para 13). In cross examination he said commonly it was put in a document but it could be a verbal agreement. 120 He accepts the deterrent effect of security guards in uniform: T602.10 and para 17 Exhibit "1". This is one matter then on which the two experts agreed. 121 Mr Joseph argued that the principle in Browne v Dunn (1893) 6 R 67, as explained by Mason P in Scalise v Bezzina [2003] NSWCA 362, that a witness should be given the opportunity to deal with contradictory evidence, should be applied in relation to the absence of questions by Mr Anderson to Mr Jennings as to whether the level proposed by Mr Smith was either necessary or reasonable. Mr Anderson replied to this saying that the rule could have no application where an expert report had been relied on by the plaintiff and that expert had been cross examined before the defendant's expert had been called, and that there was no unfairness since the plaintiff's expert's position was clearly "on the table". I accept Mr Anderson's submission that there was no unfairness in the circumstances. 122 Ironically the plaintiff's expert asserted that there was an industry rule of thumb, with which on the face of it the defendant had complied, and the defendant's expert said there was not. I did find Mr Smith's explanation for his reduced reliance on crowd surge as problematic, but I do not accept Mr Joseph's submission that the plaintiff's case on causation was dependent on there having been a surge. I thought Mr Jennings' professed reluctance and inability to advise a client on a breach of POPE conditions rather surprising, and I do not think he offered any convincing explanation as to why it was not reasonable to provide for even one additional guard downstairs (see T618-T619), particularly where he, like Mr Smith, accepted the importance of deterrence: see T602, T615 and para 17 of his report. I have had regard to both their views in forming my own opinion on the question of whether the level of security was adequate and whether the insufficiency was causative of the injury, but I found the portion of Mr Smith's report as set out in [114] above persuasive. The final part of Mr Smith's supplementary report (see p 155 Exhibit "A") is oddly worded but I think Mr Smith had made it clear that he did not think one guard downstairs was adequate. Duty of care 123 What is the duty of a publican in relation to customers of the hotel? In Spedding v Nobles [2007] NSWCA 29 the Court of Appeal held (per Basten JA, Beazley and McColl JJA agreeing) that a duty of care is owed by a licensee to patrons of a hotel to protect them from risk of attack by other patrons: at [50]. This depends not on the existence of a "special relationship" recognised by law but on the element of control. The Liquor Act 1982 confers a power of control and on obligation to exercise that power: at [50]. 124 The Court affirmed that the principles in Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91 and Oxlade v Gosbridge Pty Ltd (NSWCA, 18/12/1998, unreported, BC9807725) were not affected by Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 or Proprietors of Strata Plan 17226 v Drakulic (2002) 55 NSWLR 659; [2002] NSWCA 381. 125 In Oxlade v Gosbridge Pty Ltd (NSWCA, 18/12/1998, unreported, BC9807725), 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 Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91)." 126 In Wagstaff v Haslam [2007] NSWCA 28 at [39], Basten JA (with whom Santow and Bryson JJA agreed) thought the duty of care in that case: "might more helpfully be stated to include the following propositions, namely that: (1) the duty arose in relation to the likely behaviour of a particular patron or group of patrons, (2) whose presence at a particular time was or should have been known to constitute a source of danger to other patrons." 127 Mr Joseph relied on the portion of Basten JA's judgment in Wagstaff set out in [126] above and developed the argument, as I understood it, that the duty of a licensee to his patrons involved dealing with known unruly and intoxicated persons, and not more, there being no general duty to guard against the criminal conduct of third parties. Since the defendant did not have any reason to suspect that the assailant would commit a violent assault on the plaintiff, whether as a result of intoxication or not, there can be no duty to have prevented it, it was said. 128 Mr Joseph pointed out the danger of working from the facts as they transpired, and building back out of those facts retrospectively a duty. He complained that this is in effect what the plaintiff seeks to do here. Had the defendant employed more security guards, then one of them could have moved in the second there was the start of an altercation. That this process of reasoning should be avoided was emphasised in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 at [29] per Gleeson CJ and Newcastle Entertainment Security Pty Ltd v Simpson (1999) Aust Torts Reports 81-528; [1999] NSWCA 351 at [14] per Mason P, and see Vairy v Wyong Shire Council (2005) 223 CLR 422; 221 ALR 711; [2005] HCA 62 per Hayne J at [126]-[128]. 129 The plaintiff's case here is principally that the defendant did not have an adequate security presence on the night. The argument that the security guard who was present did not respond quickly enough was not pushed with much vigour – correctly in my view, since there is no evidence that he observed or, in the position in which he was standing, ought to have observed the altercation between the plaintiff and the assailant before the glass was thrown. The lack of immediate response by the plaintiff's friends may well have been a consequence of a level of intoxication that was higher than that to which they admitted, which I am inclined to think is the case, so I would not regard that as a significant matter in determining whether the guard ought to have responded. As I have indicated, I do not think he was aware of any problem until the plaintiff had been injured. Since the plaintiff's case is that the defendant did not have enough security personnel on the night, the duty to provide security cannot focus on what actually occurred or who was present on the night but must by its nature, focus on what ought reasonably to have been anticipated as the potential for violence and what steps, if taken, would be appropriate to deal with that risk having regard to cost, difficulties of implementation and consistency with other obligations: see Wyong Shire Council v Shirt (1980) 146 CLR 40. 130 The question of whether a licensee has a general duty of care to protect a person from his own drinking (see Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469; [2004] HCA 29 and in particular Gleeson CJ at [10], and McHugh J at [30]-[32] for competing views) does not arise here as the plaintiff does not mount such a case. 131 Last week the parties, by letter to my Associate, quite properly drew my attention to the Court of Appeal decision in Collingwood Hotel Pty Ltd v O'Reilly [2007] NSWCA 155. The parties agreed that the case should be treated as "part of the submissions of both parties". 132 Collingwood concerned the aftermath of a fight which had broken out in a hotel and which was followed by a further fight in which a bystander, also a patron at the hotel, who had come to the assistance of the injured man, had herself been injured. The level of staffing was not an issue (see [32]) and the question was whether the circumstances were such as to have required greater precautions because of an apparent risk of violence following a fracas in which a man had been injured. Basten JA (with whom Handley JA agreed) said at [21] that the parties had agreed that the relevant principles governing their potential liability in negligence for the deliberate acts of third parties were those explained in Wagstaff v Haslam [2007] NSWCA 28 and Spedding v Nobles [2007] NSWCA 29. He went on to say: "[21] … These cases held that someone in the position of a hotel manager or licensee may be liable for injury to a patron caused by the deliberate and unlawful act of another patron. The duty which gives rise to this liability depends upon the capacity, and indeed the statutory obligation, of the hotel manager or licensee to control conduct on licensed premises, pursuant to ss 103 and 125 of the Liquor Act 1982 (NSW) . These provisions not only permit the licensee to 'turn out, or cause to be turned out' any person who is intoxicated, and to use reasonable force to that end, but also impose an obligation on a licensee not to permit intoxication on licensed premises, an offence which is deemed to be committed by the presence of a person who is intoxicated on the premises, unless the licensee has asked the person to leave the premises, sought police assistance to remove the person and refused to serve the person alcohol: s 125. As will be seen shortly, there was a complaint that the relevant employee of the hotel believed that a number of patrons were sufficiently affected by alcohol to justify refusal of service, yet no steps were taken to eject those persons from the premises, until the relevant outbreaks of violence. However, it should be emphasised there is no statutory cause of action for breach of the Liquor Act, if such a breach occurred. Rather, the relevant duty to exercise reasonable care for the safety of patrons, depends upon proof that the hotel manager or licensee knew or ought to have known facts requiring intervention to protect patrons and, in those circumstances, failed to take reasonable steps to safeguard the plaintiff from a foreseeable risk of harm: see, generally, Wagstaff [2007] NSWCA 28 at [28]–[37]." 133 I do not read anything said in Collingwood as affecting the statement of principle to which I have earlier referred, save to confirm that Basten JA saw no inconsistency between Spedding and Wagstaff, and save that he emphasised the importance of causation and that a finding of causation could only be determined after a precise breach of duty had been determined: at [79]. 134 In my view the statement of Basten JA in Spedding v Nobles [2007] NSWCA 29 as to the duty of the licensee is not to be seen as confined by what his Honour said on the same day in Wagstaff. Oxlade v Gosbridge Pty Ltd (NSWCA, 18/12/1998, unreported, BC9807725) is authority for a duty of care which encompasses the protection of a patron whilst on (or departing from) the premises, and I do not think that statement can be read down by the precise facts of Oxlade, to deny any duty of care to provide security in the absence of known trouble makers (whether intoxicated or not). Lack of knowledge of problems developing on the night cannot be definitive if the lack of knowledge was due to inadequate staffing. 135 I have not in the discussion of the applicable law made any reference to ss 5B, 5C or 5D of the Civil Liability Act 2002. There seems to be a view that these sections do not represent a change in the common law – and no argument was advanced by either party in this case that they do. 136 The tavern is located in the CBD, open through the night, with live music on Friday nights and catering for a younger clientele. It was carrying on an undertaking that inherently involved the risk of a patron (especially an intoxicated patron) acting aggressively to another patron especially if the other patron was a male. 137 I do not think that a hotel, bar or tavern serving alcohol has to or can guarantee that no person will act in an inappropriate or aggressive way to other patrons but I do think that the patrons are entitled to expect a reasonable degree of protection from unruly and violent behaviour. 138 In my view, the level of security provided at the tavern (I shall deal later with the question of who was responsible for the level) was inadequate. In coming to that view I think the following matters are significant: (1) There was only one security guard at the time of the incident in the downstairs area. (2) The single security guard downstairs was at that time located in a position close to the stairs and the downstairs area was much longer than it was wide. (3) Although not very far from the dance floor, the guard present did not have an unrestricted view of it from the position near the stairs and he did not have easy access to it should a problem have developed. Not only was the access narrow and difficult as appears from the video, with the guard having to proceed alongside the bar, but the path to the dance floor along the bar was unlikely to be clear since that is where patrons would be standing to buy drinks, and there was no clear path on the night. Nor would his presence be obvious to patrons away from the stairs if he stood at the foot of the stairs. The deterrence effect of the one guard located where he was, was quite limited. (4) According to the expert opinion of Mr Smith, the dance floor, bar area, stairs and toilets are all areas that warrant extra attention. If the guard was generally located at the bottom of the stairs (as he was at the time of the incident) then: (a) he had to keep a look out over the bar, the stairs, and the dance floor and would not be able to attend or even see the areas beyond the dance floor and bar (to the west); (b) his view of the dance floor was very likely significantly impeded by pillars and speakers. (5) It would appear from the video that the security guard was keeping an eye on the stairs as well as such of the dance floor as was not obstructed by pillars, speakers and the band, but he was also close to the bar for which he also needed to keep a lookout. (6) Mr Joseph argued that it was inappropriate to watch 59 seconds of footage of the security guard at work and to conclude from that what his duties were. There is no evidence from anyone employed on the night as to his duties, or from Safe & Secure, nor has any document been produced to explain what the guard's duties were. The only evidence other than the video clip is Jeffrey Redmond's evidence of what he observed security guards doing from time to time on a Friday night (see T490.6-26), which was very limited and uninformative. Jeffrey Redmond said that he expected there to be "at least" two security personnel on duty between 8 and 10 pm (see [85] above) – he gave no explanation as to how there could be more than two, given that he had agreed on the level of security, which did not provide for more than two within those hours, one of whom had to be on the door. His limited knowledge of past events at the tavern and his very limited evidence about the security was insufficient to persuade me that he had given adequate consideration as to what was required in the interests of patrons and that his approach was a reasonable one in all the circumstances. (7) I accept the plaintiff's evidence and that of his friends that they did not observe any security guard downstairs and I think that strengthens the conclusion that one guard could not adequately make his presence felt. (8) There were no cameras over the dance floor. (9) I am strengthened in my view that the number of guards was inadequate by the fact that the council imposed a requirement after 8 pm on a Friday night for a minimum of four security guards patrolling the premises (which in effect means downstairs since there is almost no space upstairs), and there was in fact only one guard on the night at the relevant time. (10) If it be correct, as Eric Redmond asserted, that the quality of lighting above the dance floor was affected by the smoke machine and strobe lighting, if working, that would be an additional impediment to the work of one guard. It is by no means clear that on the night in question the lighting was dim or poor and I do not proceed upon the basis that the lighting itself was an impediment to observation. Vicarious liability/non-delegable duties 139 The defendant asserts that the duty to provide security is a duty capable of delegation, that it did delegate the duty and hence cannot have any liability should it be found, contrary to the defendant's contentions, that the level of security was insufficient. 140 The plaintiff does not appear to assert that the provision of security was a non-delegable duty but did contend that there was no relevant delegation in this case. 141 The defendant engaged a security firm to provide the guards. I think it is clear from Newcastle Entertainment Security Pty Ltd v Simpson (1999) Aust Torts Reports 81-528; [1999] NSWCA 351 and the subsequent decisions of the High Court in Sweeney v Boylan Nominees Pty Ltd (2006) 227 ALR 46; [2006] HCA 19 and Leichhardt Municipal Council v Montgomery (2007) 233 ALR 200; [2007] HCA 6, and Collingwood, that the defendant is not vicariously liable for any negligence on the part of Safe & Secure as independent subcontractor, and that the obligation to provide security for patrons was not a non-delegable duty. I do not think that there is any evidence that either the security guard on the door or the one on duty downstairs at 10.03 pm personally breached any duty of care owed to the plaintiff. 142 Where a person has assigned or delegated a task to a third person, he or she usually sufficiently discharges that duty by engaging a competent person to do that task: see Montgomery. In coming to a conclusion in this case, I do not need to address the question of whether it has not been demonstrated that Safe & Secure were an appropriate competent security company to whom the licensee was justified in delegating any responsibility for security, given the apparent failure of Safe & Secure to ensure that at all times its employees were the holders of valid up to date licences and not the subject of outstanding warrants and that they understood the need to record matters in the incident book and security register. The admission by Jeffrey Redmond that he had perhaps not been as attentive to his duties as licensee as he should have been (see T501.35) (perhaps explicable, as Mr Joseph contended, by reason of his significant business interests), and the matters which brought about the concession, but more particularly Jeffrey Redmond's willingness to ignore council requirements and the failure of the police and council (on Jeffrey Redmond's evidence) to do anything about the defendant's breaches of the POPE conditions, cause disquiet as to the licensing arrangements for a hotel providing entertainment in the City of Sydney in 2004 at least, but do not impact upon the issue of delegation. 143 In my view, were it established that the security guard who was downstairs at the time of the incident had been negligent in the carrying out of his duties, that would be a breach of duty on the part of Safe & Secure and not the defendant. 144 As I have indicated, this case concerns the adequacy of the number of security staff present at and immediately before 10.03 pm, the time of the incident, and in my view the defendant has not established that it left to Safe & Secure the decision as to how many staff would be present – rather the evidence of Jeffrey Redmond is that he decided the level of staffing, based, he says, on the advice of Mr Dunning. If Mr Dunning did give the advice which Jeffrey Redmond asserts he did, and if Jeffrey Redmond reasonably relied on that advice, then that may found a claim by the defendant against Safe & Secure, but the present question is whether the defendant delegated the duty to determine the appropriate level of security to Safe & Secure. I do not need to consider whether a licensee of a hotel can delegate his responsibility for ensuring that there is adequate security for patrons where he knows that what is proposed to be provided might not meet the terms of his POPE licence and the level of security is not sufficient to meet the requirements of the duty of care, because accepting that he can, I am not satisfied that the defendant did in fact delegate the responsibility for that decision to Safe & Secure given the evidence of Jeffrey Redmond to which I have made reference which establishes that he made the decisions about the level of security and whether the POPE requirements would be complied with albeit after having received advice . 145 It follows in my view that the defendant breached the duty of care it owed to the plaintiff. Causation 146 I have found that the defendant's provision of security was inadequate and that the failure was a breach of the duty owed by the defendant to the plaintiff. The next issue is whether the breach was causative of the injury to the plaintiff. The defendant's argument was that the altercation leading to the glass throwing was so quick, as little as 10-15 seconds, that even had another one or two guards been in attendance near the dance floor the outcome would have been no different. This is a significant and difficult issue, even allowing for a timing of the incident of 30 seconds or even 40 seconds rather than the 10-15 seconds asserted by the defendant, but in my view, with more guards the prospect of early intervention was much greater and the deterrent effect of which both Mr Smith and Mr Jennings spoke would have been far more effective. 147 The plaintiff relied on the approach articulated in Chappel v Hart (1998) 195 CLR 232; [1998] HCA 55 (followed in Oxlade v Gosbridge Pty Ltd (NSWCA, 18/12/1998, unreported, BC9807725)), which was in the following terms (at [93] per Kirby J, and see [10] per Gaudron J, [27] per McHugh J and [68] per Gummow J): "Once a plaintiff demonstrates that a breach of duty has occurred which is closely followed by damage, a prima facie causal connection will have been established. It is then for the defendant to show, by evidence and argument that the (plaintiff) should not have recovered damages." 148 I think that approach provides further support for the plaintiff's case that the failure to provide a sufficient number of guards led to the injury to the plaintiff. 149 In my view the defendant has failed to establish that the presence of an additional two guards on or near the dance floor would have failed to prevent the altercation from developing at all or as it did. I do not accept the defendant's argument that even had the security guards become aware of an altercation prior to the glass throwing, they would have been acting reasonably by taking no action because the altercation would have appeared to have ended, ie assuming they could have got to the scene before the glass was thrown. The defendant argued too that the altercation prior to the glass throwing had ended and that the glass throwing was a new unforeseen event. I do not accept that the glass throwing should be viewed as a new incident which need not have been anticipated as a possibility had the altercation been observed. Further, I am of the view that the deterrence effect has to be viewed not only once the punches had commenced, but even prior to that, which renders the precise duration of the altercation of limited significance. Contribution 150 Section 9(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1965 provides that if a plaintiff suffers damage as the result partly of his failure to take reasonable care (contributory negligence) and partly of the wrong of any other person: "(b) the damages recoverable in respect of the wrong are to be reduced to such extent as the court thinks just and equitable having regard to the [plaintiff's] share in the responsibility for the damage" 151 It has been held that the apportionment exercise both in relation to contributory negligence and contribution between tortfeasors requires examination of the departure of each person from the standards of a reasonable person and consideration of the relative importance of the acts of the parties in causing the damage: per Hayne J in Joslyn v Berryman (2003) 214 CLR 552; 198 ALR 137; [2003] HCA 34 at [157]. 152 In considering whether the plaintiff departed from the standard of a reasonable man, I take into account three matters: (1) the plaintiff became annoyed over a very minor matter – two slight bumps to his back on the dance floor; (2) the plaintiff then pushed the person who had bumped into him (such bumping being accidental I infer), with his hand on the other person's chest and told him to get back; this the plaintiff conceded was confronting (T158.2); (3) having seen how violent the assailant had been in responding to the shove, the violence having seemingly ended, the plaintiff in verbally abusing the assailant did not give sufficient consideration to the volatility of the situation. 153 Mr Anderson argued that the third matter could not be taken into account because it had not been pleaded or particularised. He argued that if it could be taken into account then it could not be treated as contributory negligence because the plaintiff had just been violently assaulted and was reacting in shock to what had just occurred, namely a punch to the head producing a cut lip. 154 So far as the pleading point is concerned, Mr Anderson referred to Kirby v Sanderson Motors Pty Ltd (2002) 54 NSWLR 135; [2002] NSWCA 44 dealing with amendment to pleadings in the District Court. The case concerned an attempt to amend the plaintiff's case at a very late stage in a very significant manner, and I do not think it offers any guidance here beyond emphasising the importance of pleadings and reluctance of the Court to allow a late amendment that raises a significantly new case. 155 Mr Joseph made reference to a number of cases including Water Board v Moustakas (1988) 180 CLR 491, in which at 497 per Mason CJ, Wilson, Brennan and Dawson JJ, there is the following: "In deciding whether or not a point was raised at trial no narrow or technical view should be taken. Ordinarily the pleadings will be of assistance for it is one of their functions to define the issues so that each party knows the case which he is to meet. In cases where the breach of a duty of care is alleged, the particulars should mark out the area of dispute. The particulars may not be decisive if the evidence has been allowed to travel beyond them, although where this happens and fresh issues are raised, the particulars should be amended to reflect the actual conduct of the proceedings. Nevertheless, failure to amend will not necessarily preclude a verdict upon the facts as they have emerged: see Dare v Pulham (1982) 148 CLR 658; 44 ALR 117. In Leotta v Public Transport Commission (NSW) (1976) 50 ALJR 666 at 668; 9 ALR 437 at 446, a case having been submitted to the jury which was factually different from that alleged in the pleadings and particulars, Stephen, Mason and Jacobs JJ observed that the pleadings should have been amended in order to make the facts alleged and the particulars of negligence precisely conform to the evidence. The failure to apply for the amendment in that case was held not to be fatal. But in Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292; 18 ALR 147 Jacobs J, with whom the other members of the court agreed, pointed out (ALJR at 294; ALR at 151–2) that the conclusion in Leotta was reached only upon the presupposition that the new issue or new way of particularising the existing issue had emerged at the trial and had been litigated." 156 The defence does refer to the plaintiff "maintaining an aggressive position", which could include the verbal abuse, but I am inclined to the view that Mr Joseph to avoid any doubt ought to have applied to amend the particulars, given the plaintiff's own evidence of what occurred. I do not think however that the plaintiff is entitled to ask the Court to pay no regard to the evidence of what occurred because no application to amend was made. Mr Joseph made clear in submissions his reliance on the plaintiff's conduct. Mr Anderson asserted that had the particulars been amended he would have attempted to deal with the plaintiff's evidence, by, for example, attempting to establish that the assailant did not hear the abuse from the plaintiff or deal with the noise of the band. Mr Joseph asked Mr Stephenson (T244), Mr Keating (T319) and Mr Allen, who was a lot further away (T243.25), (although the question referred to "screaming") whether they had heard the plaintiff abuse the assailant and said they had not. The plaintiff said he had spoken relatively loudly but not overly loud, and I have drawn the inference that the throwing of the glass was a response to it. I am not persuaded that Mr Anderson took a different course because no amendment was made to amend the particulars. 157 It is true that the plaintiff had just been assaulted but he had initiated the physical contact which led to that assault. I do not accept that the plaintiff's abuse of the assailant was a reaction induced by shock or wholly by shock rather than anger and alcohol. I have to compare the breach by the defendant who had no hand in the altercation (but is liable on my finding because it did not deter, or intervene in, the altercation so as to prevent the glass throwing), with the conduct of the plaintiff rather than to compare the conduct of the plaintiff and the assailant, as against whom it can be said the verbal abuse of the plaintiff could not justify the response it provoked. 158 In my opinion, the plaintiff's damages should be reduced by 50 per cent to have regard to his own conduct. Damages 159 I turn now to the question of damages. The plaintiff's case on damages had three components: (1) a claim for non-economic loss which he contended should be assessed as 45-50 per cent of "a most extreme case"; (2) a claim for a lost sign-on component of $28,500 – ie an amount that had the plaintiff signed on again in December 2004 he would have received automatically (the net benefit of one years salary); (3) a claim for a cushion of $250,000 to compensate him for his loss of vision in the left eye and hence impaired earning capacity. 160 The defendant argued that if liability were established: (1) a 25-30 per cent assessment of a most extreme case was appropriate; (2) the Court should not allow anything for the sign-on allowance because the plaintiff was not wedded to a naval career; (3) the cushion to be allowed ought be in the order of $50,000. Non Economic Loss 161 I have described the plaintiff's physical injury. There is also a psychological component to the claim. 162 Dr Jonathan Phillips, consultant psychiatrist, in his report of 6 July 2006 (pp 129-137 Exhibit "A") says: "While Mr Perkins habitually had been a robust person from the psychological point of view, the trauma of the incident on 6 August 2004 and the implications and subsequent effects of the injury have caused him to decompensate psychologically, with the development of an adjustment disorder with mixed anxiety and depressed mood DSM IV TR 309.28. Adjustment disorder with mixed anxiety and depressed mood in his case is chronic, pervasive and of intensity sufficient to interfere with the smooth conduct of his everyday life, and to significantly reduce the quality of his life. Adjustment disorder with mixed anxiety and depressed mood is, of course, an identifiable and demonstrable mental health disorder. Unfortunately the plaintiff is not making progress currently, and he is at risk for worsening mental health problems as his career with the RAN comes to an end. The symptoms experienced currently by Mr Perkins include heightened anxiety (particularly about matters of safety), concerns regarding future employment, an anhedonic mood state (with typical depression spectrum symptoms), distress about the loss of his career, a sense of being disabled and reduced motivation (particularly in relation to his possible future career). Mr Perkins is a man of very reasonable intelligence and should make good use of a cognitive behavioural psychotherapy. The plaintiff requires 15-20 consultations with a psychiatrist, with emphasis on grief work (in relation to his lost sight on the left), psycho-education and the optimising of his coping mechanisms (particularly as they relate to beginning a new career). He should undertake second monthly follow-up in the two year period after conclusion of formal therapy. Whilst there may be an argument for use of psychotropic medication, I believe a psychotherapeutic approach should be given priority." 163 The issues which arose in this context were: (1) had the plaintiff since the incident suffered and was he now suffering from a psychological disorder as he claimed; (2) was the plaintiff wedded to a permanent career in the Navy; and (3) was the plaintiff exaggerating the degree of impact on his life as a result of the incident? 164 The plaintiff saw Dr Phillips once on 28 June 2006, for the purposes of the medico-legal report referred to above. The plaintiff has seen no psychiatrist or psychologist before or since. Dr Phillips assessed the plaintiff as requiring 15 to 20 consultations with a psychiatrist with two monthly follow ups in the two year period after therapy (p 135 Exhibit "A"). No claim is made for the cost of such therapy in the future. 165 At the time the plaintiff saw Dr Phillips he was still in the Navy and entitled to free medical attention: p 135 Exhibit "A". 166 Dr Phillips did note that the plaintiff was a man of "very reasonable intelligence" who "should make good use of a cognitive behavioural psychotherapy". He did not recommend medication. Dr Phillips described the symptoms as including "heightened anxiety (particularly about matters of safety), concerns regarding future employment, an anhedonic mood state (with typical depression spectrum symptoms), distress about the loss of his career, a sense of being disabled and reduced motivation (particularly in relation to his possible future career)". He said "Left as he is now, Mr Perkins is unlikely to show psychological improvement, and he may worsen": p 135 Exhibit "A". Dr Phillips gave brief oral evidence and was cross examined: T215. He noted that the plaintiff had been a robust person but had "moved to a disabled state": T211. 167 Dr Phillips made it clear that he was not familiar with the details of what the plaintiff had done since he saw him in June 2006. References in the report to "less excitement" and "does not want to take an office job" (p 132) and the quest for a position which mirrors his old career (T216.35), have a diminished significance in the context of the plaintiff's actual activities, which involved a considerable amount of training on shore and not at sea, as did the new role to which he had been assigned before the injury and which he took up, before leaving the Navy. Dr Phillips understood that the plaintiff: (a) "minimises social activities" because of a variety of fears: T217; (b) avoids hotels and taverns; (c) avoids shopping centres; (d) avoids crowded places (T217). 168 Dr Phillips was aware that the plaintiff was in a stable relationship and that his wife was pregnant at that time: T217. He agreed that would indicate a level of normal social functioning: T218.5. Dr Phillips was aware that the plaintiff maintains a schedule of running (although the plaintiff is concerned about depth perception and tripping) (T218), and that he rides a mountain bike (T219.4) and was told by the plaintiff that he works out in the gymnasium. Dr Phillips had been told that the plaintiff is fearful in any setting where alcohol is available: p 132 Exhibit "A". Dr Phillips was unaware that the plaintiff had been back to the tavern for a drink – he thought that was a very good thing. Dr Phillips said he had no information about how often the plaintiff went into a tavern or a bar, or how often he goes shopping: T222. 169 Dr Phillips did not agree that the plaintiff's failure to seek psychiatric assistance was an indication that the plaintiff did not think his impairment was particularly significant: T222-T223. 170 There was in the cross examination an issue about whether the plaintiff's concern for the safety of his right eye (accepted by the defendant) meant that he was impaired. Dr Phillips did not say that that was sufficient but rather was of the view that if it led to abnormal fear then it would be a factor in his assessment. 171 It was agreed that statements in the report attributed to the plaintiff would not be treated as evidence (see T210.41-46). The plaintiff did not himself give evidence that he has any difficulty going to shopping centres, taverns or any area where there is a crowd. He did say "I feel depressed" (T110.29), but he explained that this was because he felt he could not do all the things he could do before and might trip on a gutter on a run and had to wear glasses now for situations that he did not need to before the injury (see T110.23-54). He became visibly upset talking about these matters (at T110.30-54) but that is not surprising as he has undoubtedly suffered a significant injury and was, because of the case, required to revisit a night that had for him most unfortunate consequences. 172 The defendant accepted that the plaintiff's eye injury was serious, that his life had been permanently affected, and that the plaintiff would be likely to always have a concern for the safety of his right eye that might make him more cautious, but the defendant pointed to the fact that: (1) the plaintiff had found employment in a career using his technological training in the Navy even before the time he was to be discharged; (2) the plaintiff has prospects of promotion in his new employment and earns more salary than he did in the Navy even with allowances, and no less than he was earning in the Navy taking into account all the benefits available to him in the Navy; (3) since the incident he has married his de facto partner and had a child and another child is due later this year; (4) since the incident he has maintained an interest in bike riding and in mountain bike riding and does not wear safety glasses for mountain bike riding notwithstanding that it is an activity not without risk; I would add to this the fact that swimming is not precluded although goggles may be desirable, and he told Dr Phillips that he works out in a gymnasium; (5) the plaintiff has been to crowded sports venues and shopping centres notwithstanding the report of Dr Phillips which speaks of him as being fearful of crowded places (p 132 Exhibit "A"); (6) broadly speaking the plaintiff, to his credit, has got on with his life notwithstanding the injury to his eye; (7) the absence of any clear evidence from the plaintiff of his psychological difficulties, other than that to which I have referred in [171] above; (8) the fact that much of the concern he expressed to Dr Phillips centred around his future employment which it transpires has been very successfully managed by the plaintiff. The plaintiff works as a logistics engineer for Thales Group Limited (formerly Australian Defence Industries), which manufactures and services the CIWS system. In that role he uses the specialised knowledge of the equipment that he obtained in the Navy, earns a salary equal to that which he had previously earned even taking into account benefits, and has prospects of advancement; he secured that employment shortly before his discharge from the Navy and commenced work immediately; (9) the plaintiff did not have to accept his classification as unfit for seagoing duties and he really did not want to continue on in the Navy. The plaintiff's evidence was that his mother, father and brother had all gone into the Navy and he loved the Navy and had no desire to leave it. 173 I have had regard to the evidence of the plaintiff's wife. She did give evidence that before the incident the plaintiff was "outgoing, he was extremely happy, enthusiastic, yeah, extremely happy. He was very optimistic, a very optimistic person, yeah": T418.30-33. She spoke of his strong naval connections (for example they were married on the naval base). She said "He played soccer, he – mountain biking, running, swimming, he was very active, very active. The gym.": T418.56. She said her impression was that he loved the Navy, "it was his life, he loved it, he enjoyed it, yeah, it meant a lot.": T419.4. She said after the incident she noticed a huge change: "He's quite depressed and quite anxious, paranoid … if there's anything that exposes him to a similar environment to what he was in or a crowded environment he will refuse to go.": T420. She said he has major mood swings: "just anxiety, depression, sad, just sad.": T420.55. She said since the injury he does go mountain bike riding but not as much as he used to. She was uncertain about whether he goes to the gym. She said that sometimes he will bump into people on the street or he will trip on the kerb – "that has happened": T421.20. 174 In cross examination, the plaintiff's wife agreed that the plaintiff has a driver's licence and drives. He not only goes mountain bike riding but will use the bike for normal bike riding with his wife in the inner Sydney area: T423-T424. She said she went with her husband to the tavern on the occasion after the injury that he went: T424-T425. She agreed that he had retained many of his former colleagues as friends: T427.30. She denied that the plaintiff had been to football events since the incident: T427.55-T428.14. I have noted that Mr Keating gave evidence that the plaintiff had done so on one occasion. She agreed that the plaintiff had been to the shops and social events, two weddings and engagement parties (T428), and agreed that there was no suggestion he had become a hermit socially but rather that "he's concerned about possible instances where he wants to protect himself": T428.55-T429.4. 175 On the question of whether the plaintiff had ever sought treatment there was from T430.40-T432.55 a series of answers by the plaintiff's wife that made it difficult to have any confidence in the reliability of her evidence concerning the plaintiff's mood and condition. 176 I think that the fact that the plaintiff has never sought any treatment for the claimed psychological condition is relevant (although by no means decisive). That and the matters in [172](1)-(8) lead me to conclude that it has not been demonstrated that the plaintiff suffers from any psychological disorder, even leaving aside any question of his reliability as a witness. 177 The plaintiff appears to have had an exemplary career as a Seaman, Leading Seaman and as Petty Officer (which I was informed is the equivalent of Sergeant). He obtained many qualifications and was chosen, when at sea, to be a member of a boarding party – boarding ships for inspection in Iraqi waters in the Persian Gulf – a dangerous mission. His colleagues attest to his dedication to the tasks allotted including his extensive works as a shore based instructor. I have no doubt that the plaintiff enjoyed his work in the Navy, performing important tasks both at sea and on shore. The plaintiff admitted in cross examination that his mother, father and brother all moved away from the Navy after a time and some of the plaintiff's friends who gave evidence similarly have left the Navy. Marriage and family responsibility, coupled with the undoubted additional risk to personal safety that active duty at sea entails, plus the ability to determine location, are all matters which I think make it a very real possibility that even absent eye injury and notwithstanding his evidence, the plaintiff would not have stayed permanently in the Navy. I do not however accept the defendant's contention that the plaintiff had much prospect of resisting discharge, although given that the plaintiff was, even before the injury to his eye, assigned to a land based (albeit important) role which he was able to perform without difficulty up to his date of discharge, the Navy's insistence that he have good vision in both eyes for him to continue (if it has been fairly described by the plaintiff) does not seem logical. Whilst I accept that the plaintiff derived considerable satisfaction out of his naval career and but for the injury may well have remained in the Navy I think there was a significant prospect that he would not have done so. 178 I accept that the plaintiff has suffered a significant injury to his eye which caused him pain and great concern, both initially and at the time of the two operations on his eye, and that he continues to experience mild discomfort in the eye and handicap as a result of loss of most of the sight in his left eye. I accept that his quality of life has been impaired because of the injury and that his freedom to continue on with the life in the Navy which, whether or not he would have continued, would have been open to him but for the injury, has been adversely affected. 179 I accept that some everyday tasks have been made harder and that some sports activities are not open to him – such as soccer – but I think it is clear that having had the misfortune, he has to a large degree overcome its ill effects – he obtained employment in a field closely allied to one of his main activities in the Navy, he has suffered no loss of income (other than the sign-on bonus with which I shall deal) and he has married and had a child, with another one on the way. He still is active physically and is not precluded from carrying out at least some of his former sports activities. 180 He feels a need (and it is a justified one) to take extra care viz a viz his right eye, but not to such extent as prevents him from for example mountain bike riding and normal bike riding without, it seems, wearing safety glasses. 181 He is able to attend football games and I am not persuaded that he has any fear of crowds as would prevent him from attending sports or music events or shopping centres. 182 Although I think it likely that the plaintiff exaggerated his commitment to a life in the Navy, I think some allowance in non-economic loss should be allowed for the loss of the Navy option. 183 Taking all of these matters into account, I assess the plaintiff's condition as a result of the injuries inflicted upon him by the assailant as 30 per cent of a most extreme case. The sign-on bonus 184 It was agreed that the amount of the net benefit the plaintiff would have obtained if he had been able to sign on for a further five years would have been $28,000. To obtain that benefit the plaintiff would have to continue service in the Navy with some risk of assignment to a war zone although I think that was a limited prospect given his appointment (determined by the Navy pre-injury but which had not yet started) to a further shore-based role. I think that the plaintiff should be awarded a figure representing 80 per cent of the sign-on bonus to reflect the significant likelihood that he would have continued in the Navy, but for the injury, at least for a further period. Cushion 185 On the evidence it is clear that apart from the loss of sign-on bonus the injury has not reduced the income of the plaintiff even taking into account the various Navy benefits such as sea-going and active zone allowances. The plaintiff's training makes it unlikely that he will be dependent on his left eye for employment but he is impaired in the market place and cannot do all of the jobs that he could have undertaken absent the injury and is to be compensated for loss of earning capacity to the extent that is or may be productive of financial loss: Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5 at 3 per Deane, Dawson and Toohey JJ and at 16 per Gaudron and McHugh JJ. To take into account the prospect that if he does need to seek work of a different kind to that which he is currently undertaking, he may not be as capable and hence as likely to obtain the position as a person with full binocular vision, I would allow a $50,000 cushion to reflect delayed or reduced prospects of employment over the balance of his working life. Conclusion 186 It follows that I would award the plaintiff the following: (a) $128,100 (30 per cent of a most extreme case using $427,000 as the maximum figure on my calculations); (b) $22,400 (80 per cent of sign-on allowance); (c) $50,000 (cushion); but reduce the amount by 50 per cent to $100,250 to take into account my finding of contributory negligence. 187 There was evidence led by the defendant and cross examination of the defendant in relation to receipt by the plaintiff of $48,000 from the Victims Compensation scheme. I am inclined to think it is appropriate to order the defendant to pay that amount (out of the judgment) to the scheme to avoid double handling but I will hear the parties on the form of orders, any mathematical errors and the question of costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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