New South Wales Court of Appeal CITATION : Angus v Stevenson [2002] NSWCA 296 FILE NUMBER(S) : CA 41014/01 HEARING DATE(S) : 30 August 2002 JUDGMENT DATE : 30 August 2002 PARTIES : Michael Joseph ANGUS (Appellant) Troy Ashley STEVENSON (Respondent) JUDGMENT OF : Hodgson JA at 1; Santow JA at 8; Gzell J at 32 LOWER COURT JURISDICTION : District Court LOWER COURT DC 103/00 FILE NUMBER(S) : LOWER COURT Herron DCJ JUDICIAL OFFICER : COUNSEL : D S Weinberger (Appellant) G R Petty, SC/ P R Cummings (Respondent) SOLICITORS : Gadens Lawyers (Appellant) Marshall & Partners (Respondent) CATCHWORDS : NEGLIGENCE - occupier's liability - causation - glasses overcrowded on tables - risk that glass on such tables may fall to the floor - glass on dance floor - plaintiff fell on glass causing injury - absence of proper and safe system for collection of empty glasses - inadequate implementation of system to collect glasses. Chordas v Bryant (Wellington) Pty Ltd (1998) 20 FCR 91 CASES CITED: Guildford Rugby League Football and Recreational Club v Coad (2001) ATR 81-263 Kingrom Pty Ltd v Sawka (NSWCA, 8 July 1996, unreported) DECISION : Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41014/01 DC 103/00 HODGSON JA SANTOW JA GZELL J 30 AUGUST 2002 Michael Joseph ANGUS -v- Troy Ashley STEVENSON Judgment - ex tempore 1 HODGSON JA: I agree with Santow JA. 2 The Respondent gave evidence that there were a number of tables in the vicinity of the dance floor with glasses on them, that one apart from his own had "plenty of glasses" on it, and also that his own table was so overcrowded with glasses that he had difficulty finding a space on it to place his own glass. The Trial Judge accepted that evidence. He also found that the Appellant's system for collecting glasses was inadequate. 3 Insofar as the Appellant challenged those findings, in my opinion there was no good basis for that challenge. 4 The most substantial challenge was to the issue of causation. The Trial Judge near the commencement of his judgment commented that the glass had been inadvertently left at the edge of the dance floor. However, later on he said it may have fallen from one or other of the tables. I accept the Appellant's submission that, if the glass was left at the edge of the dance floor as the result of a casual act unconnected with the overcrowding of tables, then causation would not have been established. 5 However, although the primary judge did not expressly say this, there was a clear inference available that just as the Respondent's table was overcrowded with glasses, so were other tables in the vicinity of the dance floor, and that this situation gave rise to a risk that one or more of the glasses would end up on the floor and thus be a hazard to the dancers. 6 In my opinion also, an inference was available that the glass on which the Respondent was injured came from this source and was a realisation of this risk, either because it fell off an overcrowded table or was placed there because there was no room on the tables, that is, that the glass was not there due to its being left there for a reason unconnected with the overcrowding of the tables. 7 Although the Trial Judge's judgment could have better drawn attention to these matters, I think this was the true basis of the judgment and on that basis the judgment, should be upheld and the appeal dismissed. 8 SANTOW JA: The Respondent/Plaintiff was injured when he fell onto a glass on the dance floor at the Grand Hotel at Newcastle, which was occupied by the Appellant/Defendant licensee. 9 The Respondent had been to another licensed premises that evening and had been drinking alcohol with his friends. The Trial Judge found that although he had consumed alcohol as also his companion Mr Loughnan, he was conducting himself in an orderly manner. 10 Immediately prior to the fall the Respondent had been dancing vigorously on the dance floor. A fight broke out leading to a press of people on the dance floor and which in turn led the Respondent to fall over a girl whom he had been trying to help after she had fallen. 11 When the Respondent fell he lacerated his left palm after falling onto a schooner glass shattering it. The Trial Judge concluded that the Defendant had been negligent and was liable for damage to the Plaintiff. The total award was $196,127. 12 The Appellant has appealed on the issue of liability only. FIRST INSTANCE JUDGMENT 13 The Trial Judge Herron DCJ noted that there was little or no dispute about the Respondent's injuries nor indeed the other matters to which I have earlier made reference. 14 There is, according to the Appellant's first ground of appeal, some confusion as to whether the Trial Judge's finding was that the Respondent fell on an already shattered glass or whether when he fell, he shattered it. 15 But I do not consider that anything significant hangs upon that since the issue of liability would not be determined by whether one or other of these two contingencies applied. 16 The Trial Judge at one point in his judgment made reference to the glass having been inadvertently left on the dance floor. He subsequently clarified that at Red, 86D where the Trial Judge says: "While I have said that the glass was inadvertently left on the ground, it may well have been that it may have fallen from one or other of these tables. Indeed he told me that so far as his table was concerned that the space on the table was such that he had to search for a place to deposit his own glass before he actually went onto the dance floor...He told me that he had to squeeze his glass onto the table". 17 The reference to "he" is to the Respondent. Importantly, the Trial Judge found that glasses had accumulated on the table being used by the Respondent and his friends. Although the Appellant attempted to attack that evidence by references in the transcript which indicated that the Appellant and his friend Mr Loughnan had not taken much notice of surrounding tables, there was unqualified evidence from the Respondent that the table at which he sat as well as a table to the right was overcrowded with glasses; see Black, 12Y and 13. 18 Mr Loughnan's evidence was to similar effect. Thus at Black 60R appears the following question and answer in cross-examination. "Q. And see you'd agree with me, would you not that while you went to the bar and to the bathroom and in between having dances, some glasses may have been picked up from your table, you'd agree with that, wouldn't you? A. They may have. But not a large portion ." [Emphasis added]. 19 The Appellant from that concession attempted to attack the finding of the Trial Judge but in my opinion, there was evidence available to the Trial Judge to make the finding he did. 20 Relevant to that question was the Trial Judge's associated finding, which he expressed in slightly different terms in several parts of his judgment. He found that there was no proper system for the collection of glasses which may thereby have become a danger to those in the establishment. Thus the Trial Judge considered that the Plaintiff's injury arose as a result of a non-efficient clearing system and one not dictated by safety considerations but by the need for re-use; for the various references in the judgment see in particular Red, 82T, 86D, 90E and 90S. 21 Although the Trial Judge did not elaborate on all of the evidence that led him to that conclusion or was available to him in support of that conclusion, that evidence is fairly set out at para 10 of the Respondent's submissions (Orange, 19). This I quote below with the cross-referenced transcript references. "10. The respondent and Mr Loughnan gave evidence from which it might be found that during the time that they were in the nightclub that there was no one collecting glasses and that glasses accumulated on their table at least. The trial judge was, from the cross examination, alive to the fact that both had had a few drinks and that the opportunity for observation was not continuous. But their evidence was not, in point of detail, challenged in cross-examination nor controverted by the evidence in the appellant's case. Mr Rheinberger, the manager, gave evidence of what was expected of staff but he was not in the nightclub until just before the respondent's injury. The person employed in the hotel to collect glasses ("the glassie") Mr McArthur gave evidence. His evidence of what he did on the night of the respondent's injury was given in generalities and smacked of reconstruction: Transcript page 72 ln.53. Although in his evidence-in-chief he said (in answer to a leading question) that he was working in the nightclub ("downstairs") in cross examination it emerged that Mr McArthur was employed to work primarily in the upstairs area of the hotel: He worked in the nightclub only if it was "a particularly busy Friday night": Transcript page 74 ln.35. The appellant, the owner of the hotel, gave evidence that according to the takings this was not a particularly busy Friday night: Transcript page 67 ln.3. There was a suggestion in the re-examination of Mr McArthur that on occasions when he worked upstairs another "glassie" Ben Fennell was employed downstairs – Transcript page 75 ln.40. According to the wage records of the hotel Mr Fennell did not work that night: Transcript page 67 lns.26-43. No member of the security staff or the bar staff of the nightclub was called." 22 I should add that the Trial Judge concluded that there were a number of factors militating against the Respondent holding the glass in question himself and there is no basis for disturbing that finding. APPEAL GROUNDS 23 Stripped to their essentials, the appeal grounds amount to an attack first on the Trial Judge's finding as to there not being a proper and safe system for the collection of glasses and then on the inference that he drew from that. That inference was that (i) there was a foreseeable risk of injury, and (ii) this was a risk that a suitable system would, on the balance of probabilities, have mitigated if not averted. 24 In mounting that attack, the Appellant pointed to at least three possibilities that may have led to the injury, contending that any one was no more probable than any other: (i) That the glass was inadvertently left at the edge of the dance floor; Red, 80V. (ii) That the glass was simply put on the floor, a variant, no doubt of i) above. (iii) That the glass fell off an overcrowded table (Red, 86). 25 The Appellant submitted that the evidence did not permit the Trial Judge to conclude that as a matter of causation, the third possibility said to connote negligence, was in fact the proper inference to draw as against either of the other two alternatives neither of which were said to connote negligence. In fact (i) might also connote negligence, depending on whether the glass fell off a table, through an inadequate system of collection, or by reason of its inadequate implementation. 26 The Appellant relied upon the decision in Kingrom Pty Ltd v Sawka (NSWCA, 8 July 1996, unreported). That case also involved injury at a nightclub where the Plaintiff, dancing on a dance floor, was struck near the ankle by a glass which had careered across the dance floor. 27 Importantly though, in that case the evidence was that the "glasses when empty, were regularly collected by two collectors...and returned to the bar area for washing and reuse". There was no convincing evidence equivalent to that in the present case. Rather the evidence was of at least two tables overcrowded with glasses connoting, with other evidence, the absence of an adequate system of collection, or its adequate implementation. 28 The Trial Judge dealt correctly with the applicable principles (Red, 91/2). In particular, he relied upon the principles stated in the dissenting judgment of Davies AJA in Guildford Rugby League Football and Recreational Club v Coad (2001) ATR 81-263. Davies AJA made reference to Chordas v Bryant (Wellington) Pty Ltd (1998) 20 FCR 91, citing the following passage which in turn is derived from 40 Am Jur 2d, par 111: "Although a proprietor of an inn, hotel, restaurant, or similar establishment is not an insurer of the safety of his guests or patrons against tortious or improper acts or conduct of other guests, patrons, or third persons, he is bound to exercise reasonable care in this respect for their safety, and may be held liable on the ground of negligence. Such a proprietor is liable for injuries to guests or patrons caused by accidental, negligent, or intentionally harmful acts of other guests, patrons, or third persons, if, by the exercise of reasonable diligence, he could have discovered that such acts were being done or were about to be done and could have protected his guests or patrons by controlling the conduct of the tortfeasor or by giving adequate warning to enable the guest to avoid harm. But he is not bound to anticipate and guard against the unusual or abnormal, or against something which reasonable care, skill, or foresight could not have discovered or prevented. And there is no duty imposed on him to warn of obvious dangers created by a third person, unless he had knowledge of such dangers or unless knowledge may be inferred from the surrounding circumstances or from the lapse of time." Davies AJA went on to say: "In this appeal, counsel did not dispute that that passage describes the content of the duty of care in a practical way, although, of course, Australian authorities, such as Wyong Shire Council v Shirt (1980) 146 CLR 40 dealing with issues of proximity and foreseeability, must be applied. A manager of licensed premises has a more onerous responsibility than has a manager of non-licensed premises, because of the well-known effect of alcohol upon those who consume it. Alcohol tends to reduce inhibitions and to relax control. This is a factor of which proprietors and managers of licensed premises are well aware. It was the factor, which, in Oxlade v Gosbridge Pty Ltd (unreported, Mason P, Sheppard and Fitzgerald AJJA, 18 December 1998), led the Court to conclude that the harassment of a single female patron leaving a hotel at closing time was a sufficiently likely event as to have been reasonably foreseeable. " 29 Davies AJA emphasised that the manager of licensed premises has a more onerous responsibility than a manager of non-licensed premises, because of the well-known effect of alcohol upon those who consume it. Relevant matters to be considered, according to Davies AJA, include the magnitude of the risk, the degree of probability of occurrence and the expense and inconvenience of taking alleviating action. While Davies AJA was in dissent, there was no difference between the majority (Ipp and Rolfe AJA) as regards these being the applicable principles to be applied. 30 Turning to the present case, I consider that it was open to the Trial Judge as he did to conclude that the Appellant should have appreciated the risk from failing to collect glasses from crowded tables in the close vicinity of a dance floor. Further that the Appellant had failed to exercise due care to remove that foreseeable risk of injury from glasses not collected. He should have done so by implementing a system reasonably designed to avert that danger or minimise it and failed to do so. ORDERS 31 I consider the appeal should be dismissed and that it should be ordered accordingly. 32 GZELL J: I agree with Santow JA. 33 In my view the Trial Judge was correct in concluding that the failure to implement an adequate system for the removal of empty glasses from the vicinity of the dance floor was the cause of the Plaintiff's injuries. 34 HODGSON JA: The order of the Court is: appeal dismissed with 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. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.