PAB Security Pty Ltd v Mahina [2009] NSWCA 125

New South Wales Court of Appeal

CITATION: PAB Security Pty Ltd v Mahina [2009] NSWCA 125

HEARING DATE(S): 12 May 2009

JUDGMENT DATE: 27 May 2009

JUDGMENT OF: Tobias JA at 1; McColl JA at 87; Macfarlan JA at 88

DECISION: Appeal dismissed with costs

CATCHWORDS: TORTS – Negligence – Proof of negligence – Weight and credibility of evidence – Whether primary judge erred in acceptance and rejection of certain evidence – Security personnel and group of men engaged in fight outside nightclub – Member of group issued threat to return and kill – Whether respondent was specific target of threat – Duty of care by employer to respondent to provide a safe system of work and avoid risk of injury – Whether reasonably foreseeable that group of men or another person on their behalf would return and shoot respondent – Whether breach of duty of care by not rotating respondent inside nightclub to perform security duties – Causation – Whether respondent would have been shot in any event had he been rotated inside nightclub

LEGISLATION CITED: None

Bendix Mintex v Barnes (1997) 42 NSWLR 307 Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 English v Rogers [2005] NSWCA 327; (2005) Aust Torts Reports 81–800 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 CASES CITED: Gittani Stone Pty Ltd v Pavkovic [2007] NSWCA 355 March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269 Sheather v Country Energy [2007] NSWCA 179; (2007) Aust Torts Reports 81–901 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40