RILEY v FRANCIS & ANOR [1999] NSWCA 52

New South Wales Court of Appeal CITATION : RILEY v FRANCIS & ANOR [1999] NSWCA 52 revised - 15/03/99 FILE NUMBER(S) : CA 40335/98 HEARING DATE(S) : 11 March 1999 JUDGMENT DATE : 11 March 1999

PARTIES : Sandra Riley Richard Arnold Francis & Anor JUDGMENT OF : Priestley JA at 13; Sheller JA at 14; Giles JA at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 6408/97 LOWER COURT JUDICIAL OFFICER : Patten DCJ

Appellant - D E Grieve QC & B Slowgrove COUNSEL : First Respondent - R A Cavanagh Second Respondent - G J Grogin Appeallant - Hunt Partners SOLICITORS : First Respondent - Henry Davis York Second Respondent - McCabe Brown CATCHWORDS : Negligence - breach of duty of care - patrol of nightclub attacked by another patron - whether security staff acted reasonably DECISION : Dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40335 of 1998 DC 6408 of 1997

PRIESTLEY JA SHELLER JA GILES JA

Friday 11 March 1999

RILEY v FRANCIS & ANOR

JUDGMENT

1 GILES JA: The appellant was a patron at a nightclub. She suffered a disfiguring injury when another patron struck her in the face with a glass. She claimed damages from the first respondent, the licensee of the nightclub, and the second respondent, the provider of its security staff. It was found, in my view correctly, that she was owed a duty of care, whether contractual or tortious does not matter for present purposes, to take reasonable care for her safety while at the nightclub. Patten DCJ held that breach of the duty of care had not been established. The appeal challenges that conclusion. 2 The facts were not significantly in dispute, and it is sufficient to refer to them in short form. 3 There was what has been called in the appeal a first altercation, in which Ms Kell, the other patron, and her companion, Mr Evans, who were strangers to the appellant, appropriated the seats of the appellant and her companion, Ms Cicciarelli. When the appellant was retrieving her coat, Ms Kell faced the appellant and lifted a chair in what the appellant thought an aggressive way, and the appellant sought to protect herself by tilting a table towards Ms Kell. One of the security staff, Mr Gallagher, intervened, it seems being of the view (perhaps from imperfect knowledge) that the troublemaker was the appellant. He placed a hand on the appellant, and she and Ms Cicciarelli said that they would leave and began to do so. 4 The appellant went to the ladies' toilet on her way to the exit. Ms Kell followed her and set upon her, and there was a second altercation in the toilet in which the two of them traded blows. Ms Kell left in the face of the appellant's defence. Mr Gallagher and another member of the security staff, Mr Mieczkowski, had seen Ms Kell and Mr Evans follow the appellant and had themselves sought to follow the appellant and Ms Cicciarelli to the exit, but had lost sight of them. They were not aware of the second altercation. 5 Shortly thereafter, while the appellant was still in the ladies' toilet, there was a third altercation when Mr Evans entered it and assaulted her. He struck her hard on the face and held her against the wall while further striking her. Ms Cicciarelli was present, and Mr Evans abused her. Ms Kell re-entered the toilet at about this time, and clearly enough encouraged Mr Evans and at least on the appellant's evidence held the appellant and participated in striking her. 6 Ms Cicciarelli left the toilet, saw Mr Gallagher and Mr Mieczkowski, and asked them to help, saying "there is a man in the toilet and he is bashing up my girlfriend". Mr Gallagher and Mr Mieczkowski went into the toilet and saw Mr Evans holding the appellant against the wall. Ms Kell was present, but they did not see her actually striking the appellant. It seems that at this point she was holding the appellant's blouse, and an inference of participation with Mr Evans would have been readily available to the security staff. 7 Mr Gallagher and Mr Mieczkowski dragged Mr Evans away, and together manhandled him out of the toilet towards the exit. At a point in the journey Mr Gallagher continued alone with Mr Evans and ejected him from the nightclub. Ms Kell followed them out of the toilet, apparently saying that Mr Evans had done nothing wrong and indicating that they should leave him alone. 8 When he parted from Mr Gallagher, Mr Mieczkowski returned to the toilet, and there then occurred a fourth altercation. The appellant was still in the toilet, perhaps on her way out, when Mr Mieczkowski arrived, and it seems that Ms Kell must have followed Mr Mieczkowski back or at least arrived back at the toilet at about the same time he did. According to the appellant, she saw Ms Kell behind Mr Mieczkowski as she stood in the doorway of the toilet. According to Mr Mieczkowski, when he was speaking to the appellant in the toilet Ms Kell was behind him. The appellant and Ms Kell confronted each other and were shouting at each other, and Mr Mieczkowski stood between them, sought to calm them down, and said to Ms Kell "come on, you're going now too". Mr Gallagher returned in time to hear this said, and saw Mr Mieczkowski move to lay hands on Ms Kell. Ms Kell then struck out at the appellant over Mr Mieczkowski's shoulder, hitting her in the face with a glass and inflicting the injury. That she held a glass was not known to either Mr Gallagher or Mr Mieczkowski. The appellant's primary submission was that the proper discharge of the duty of care required that the respondents, between whom I still do not think it necessary to distinguish for present purposes, eject Ms Kell at the same time as they ejected Mr Evans. If that needed more security staff, it was said, more should have been summoned. 9 The security staff were on notice from the first altercation that Ms Kell might be aggressive towards the appellant, and from the third altercation that she had encouraged Mr Evans' violence and herself participated in it. As a secondary submission, it was said that even if they did not eject Ms Kell at the same time as they ejected Mr Evans, the respondents should have acted in some other way to protect the appellant, for example by adequately separating her in a timely way from Ms Kell so that the striking out could not occur. The facts were likened to those described as a powder-keg situation in Wormald v Robertson (1992) Aust Torts Rep 81-180. Returning to the primary submission, it was said that if it was thought necessary to eject Mr Evans then it was equally appropriate to eject Ms Kell, and that if she had been ejected at the close of the third altercation the injury would not have been suffered. 10 Each case must turn on its own facts, and the facts in Wormald v Robertson were quite different from the facts in the present case. Here it is of some significance, in my view, that at the close of the third altercation Ms Kell had left the toilet and seemed to have broken off the hostilities. There was no evidence that she gave any indication of an intention to return to take them up. 11 In my opinion, the suggestion of ejection of Ms Kell at the same time as Mr Evans was ejected is too stark a view of what proper discharge of the duty of care required. It called for whatever was reasonable in the circumstances, and in the circumstances something less than ejection was reasonable. As was stated by Mr Gallagher, the first priority was to remove Mr Evans; he was assaulting the appellant. To lay hands on his accomplice in a similar manner was in my view reasonably thought unnecessary when she was leaving the toilet in the way I have indicated. Then when it became apparent, on Mr Mieczkowski's return to the toilet, that the hostilities had in fact not ended, the question was whether his interposition, attempting to calm the appellant and Ms Kell (both of whom were clearly in a state of excitement), and announcement to Ms Kell that she must leave, was properly thought sufficient. Mr Mieczkowski was a very large person, and both the appellant and Ms Kell were fairly slight. That Ms Kell had a glass, or any other object with which she might act as she did, was not known, and that she would be able to injure the appellant notwithstanding Mr Mieczkowski's interposition between them, would have been seen as highly unlikely. The action taken was in my view a reasonable course in the circumstances. 12 It may or may not have been possible and permissible to lead expert evidence of the appropriate way for security staff to deal with situations such as that facing Mr Gallagher and Mr Mieczkowski. There was no such evidence, by which I mean only that whether the duty of care was discharged was and is a matter for the court to determine, upon consideration of all the circumstances and the court's own view of reasonable response to the situation. We have been referred to the statement of Mason J on that subject in Wyong Shire Council v Shirt (1980) CLR 40 at 47-8. Minds may differ, but mine is in accord with that of Patten DCJ and I agree that breach of the duty of care was not established. Hence in my opinion the appeal should be dismissed with costs. 13 PRIESTLEY JA: I agree. 14 SHELLER JA: I also agree. 15 PRIESTLEY JA: The order of the Court therefore is that the appeal is dismissed with costs. __________________