Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Smith v Croote Pty Ltd [2014] NSWCA 35 Hearing dates: 27 November 2013 Decision date: 07 March 2014 Before: Meagher JA at [1]; Ward JA at [4]; Emmett JA at [5]. Decision: Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - negligence - dangerous premises - injuries to persons entering premises - whether hotel proprietor and security provider liable Legislation Cited: Civil Liability Act 2002, s 5D Liquor Act 1982, ss 2A, 103(1)(a), 125(1)(b), 125(3), 125(4) Cases Cited: Adeels Palace v Moubarak [2009] HCA 48; 239 CLR 420 Category: Principal judgment Parties: Geoffrey John Smith (Appellant) Croote Pty Limited (First Respondent) TA & EL Dunn Pty Limited (Second Respondent) Representation: Counsel: I Butcher (Appellant) R Cavanagh SC with S Holmes (First Respondent) N Polin (Second Respondent) Solicitors: Hannaford Cox Connellan & McFarland (Appellant) Thompson Cooper Lawyers (First Respondent) Lee & Lyons Lawyers (Second Respondent) File Number(s): 2013/15823 Decision under appeal Citation: Geoffrey John Smith v Croote Pty Limited Date of Decision: 2012-12-20 00:00:00 Before: Armitage DCJ File Number(s): 2010/101029 Judgment 1MEAGHER JA: This is an appeal from the decision of Armitage DCJ in proceedings brought by the appellant (Mr Smith) against the first respondent (Croote) as hotel proprietor, and the second respondent (Dunns), as security provider, for negligence said to have resulted in injuries sustained on 7 April 2007 when he was assaulted outside the bar and beer garden area of the Lightning Ridge Hotel/Motel. The primary judge dismissed that claim. I agree with Emmett JA that Mr Smith's appeal also should be dismissed with costs. 2The primary judge held that Croote and Dunn were negligent in two respects in relation to the planning and implementation of the security arrangements at the Hotel premises for the evening of 7 April 2007; but that Mr Smith had not established factual causation in relation to that negligence as required by s 5D of the Civil Liability Act 2002. For the reasons given by Emmett JA, the primary judge did not err in not being satisfied that factual causation had been established; but did err, as contended by Croote and Dunns, in finding that they were negligent in not making security arrangements for the night in question on the basis that up to 300 people might be present in the hotel premises at some time during the evening. 3Mr Smith also argued that the primary judge erred in not considering and finding that there were other respects in which the respondents had been negligent which would have prevented the assault. Each of those arguments has been addressed by Emmett JA and I agree with his reasons for concluding that they should be rejected. 4WARD JA: I agree with Emmett JA, for the comprehensive reasons that his Honour gives, that the appeal should be dismissed with costs. 5EMMETT JA: The appellant, Mr Geoffrey Smith, suffered serious injury on 7 April 2007 when he was assaulted by a Mr Ricky Lohse outside the bar and beer garden area of the Lightning Ridge Hotel/Motel in Lightning Ridge, New South Wales (the Hotel). He sued the respondents, Croote Pty Limited (Croote) and TA & EL Dunn Pty Limited (Dunns), in the District Court. Croote was the Hotel proprietor and Dunns provided security guards for the protection of the Hotel's patrons on the day in question. Mr Smith alleged that his injuries were the result of a breach of a duty of care owed to him by Croote and Dunns and that Croote breached an implied term of a contract between him and Croote. 6On 20 December 2012, the District Court entered a verdict for Croote and Dunns and ordered Mr Smith to pay their costs. Mr Smith now appeals to this Court from those orders. The Security Arrangements 7The Hotel is on premises (the Hotel Premises) that were licensed at the relevant time under the Liquor Act 1982 (the Liquor Act). The Hotel Premises are situated on the corner of Morilla and Onyx Streets, Lightning Ridge, and consist of a hotel building, a restaurant or bistro, a covered beer garden and an outdoor beer garden, a bottle shop, a function centre and a motel reception building and motel units, as well as car parking. The maximum capacity of the Hotel Premises under the Liquor Act is 500 patrons. 8On the day in question, the licence for the Hotel Premises was the subject of an endorsement that provided that part of the Hotel Premises was to be secured and the licensee was permitted to serve alcohol until 3am. The secure area consisted of the hotel building, the restaurant or bistro, the covered beer garden and the outdoor beer garden. 9The outdoor beer garden was enclosed by a two-metre steel fence, with two entry and exit points to the north and south that were patrolled by the security guards. At about 9pm, the southern entry and exit point was closed and locked. Only the northern entry and exit point remained open after 9pm. 10The Hotel Premises are part of a larger site known as Lightning Ridge Motor Village. That larger site is approximately 200 metres by 200 metres. Apart from the Hotel Premises, the larger site contains a camping area, caravan park and caravan parking area. The Hotel Premises are approximately one-third of the larger site. 11The day in question, 7 April 2007, was a day of festivity in Lightning Ridge. Horse races and goat races were conducted and there was a considerable influx of visitors to the town. The Hotel is not the only licensed premises in Lightning Ridge and all licensed premises made provision for an influx of visitors because of the festivities. 12Some days prior to 7 April 2007, Croote and Dunns had made arrangements for Dunns to provide security guards for the evening of 7 April 2007. The evidence of those arrangements consists of answers to interrogatories tendered by Mr Smith. 13Approximately seven days before 7 April 2007, Croote and Dunns made an agreement pursuant to which security services would be carried out at the Hotel Premises on 7 April 2007. The agreement was made in the course of discussions between Ms Errolyn Dunn, on behalf of Dunns, and Mr Kyle Woodhouse, the licensee of the Hotel Premises, on behalf of Croote. The security services were to include the observation of patrons inside the bar lounge and in the beer garden. Mr Woodhouse asked Ms Dunns to provide him with security at the Hotel Premises from 7pm until 1.30am. Mr Woodhouse said he did not want all the guards starting at once, but needed the main area of the Hotel Premises and the beer garden to be monitored for crowd behaviour. Ms Dunn said that she could arrange four guards, two to work from 7pm until about 1.30am and two to work from 9pm until about 1.30am. Croote accepted that the only system that it had in place to protect persons on the Hotel Premises was the engagement of Dunns as a licensed security contractor. 14In her answers to interrogatories, Ms Dunn said that Dunns employed four security guards on the night in question. They were Ms Dunn herself, Mr Barry Harland, Mr Lindsay Magann and Ms Edith Stanfield. However, in a statement made to the police some days after 7 April 2007, Ms Dunn said that on the evening in question she performed crowd control duties at the Hotel Premises with four other security guards. Further, Dunns rendered an invoice to Mr Woodhouse on 9 April 2007 for the supply of "five security on 07/04/07 from 5pm to 1.30am". Croote paid that invoice on 11 April 2007. Notwithstanding those references to five security guards, only the names of four guards have been identified, being the four individuals referred to above. 15Ms Dunn informed the guards that their duties were to observe patrons' behaviour, including drunken and violent behaviour. If a patron was observed to be intoxicated or misbehaving, a warning was to be given and, where appropriate, the patron was to be asked to reduce his or her consumption of alcohol. If patrons were observed to be aggressive or to continue to drink alcohol excessively and continue to use bad language, they were to be asked to leave and were to be escorted from the Hotel Premises. If patrons became violent, the police were to be contacted and the licensee was to be informed of any particular patrons who were violent. The duties of the guards were to monitor inside the lounge and the outside beer garden and to remove any persons who may have been previously warned about their behaviour. The Assault on Mr Smith 16The evidence as to precisely what occurred on the evening of 7 April 2007 is somewhat sketchy. Mr Smith, because of the effects of the assault on him, had a limited recollection of the evening. However, he gave evidence of his recollection. Mr Richard Bouwmans, a friend of Mr Smith, who attended the Hotel Premises with him on the night in question, also gave evidence. No other witnesses were called on behalf of Mr Smith to give evidence about the events of 7 April 2007. Croote called no witnesses as to those events. The only witness called by Dunns as to the events in question was Ms Stanfield. 17Statements made to the police on 11 April 2007 by Mr Magann and Ms Dunn, as well as a statement made to the police on 10 April 2007 by Ms Glenda Davies, who was employed as a member of the bar staff at the Hotel Premises on the night in question, were admitted into evidence. In addition, police records (COPS) were admitted. From that material, as well as the evidence of Mr Bouwmans and Ms Stanfield, it is possible to glean some understanding of the events of the night in question. There is no real dispute about the facts except as to the precise timing and sequence of events in some instances. The evidence of each of the witnesses is summarised in turn. Ms Dunn's evidence 18Ms Dunn's evidence was that she commenced work at the Hotel Premises at about 5pm on 7 April 2007. Throughout the evening, she monitored the crowd in the public bar, the lounge area and the outside beer garden. Between 10pm and 10.30pm she observed Terry Lohse standing at the lounge bar consuming a stubby of beer and formed the opinion that he was too intoxicated to be inside the Hotel Premises. Ms Dunn said that she had spoken to Terry Lohse earlier in the evening about his alcohol consumption and asked him to "slow down on the drinking". Ms Dunn later approached Terry Lohse with Ms Stanfield and Mr Magann and asked him to leave. She said that while she was speaking to him, Ricky Lohse stepped in and started arguing with her. 19Ricky Lohse told Ms Dunn that she had no right to tell his father to leave. While she and the other guards continued to tell Terry Lohse to leave the Hotel Premises, Ricky Lohse kept arguing and swearing at them. Ms Dunn then told Ricky Lohse that he also had to leave the Hotel Premises because he was arguing and being abusive to her and the other guards. After about ten minutes of arguing and attempting to get Ricky Lohse to leave, they managed to get him to walk out of the bar through the glass doors that led to the beer garden. He continued arguing, swearing and threatening the guards. 20Mr Harland was standing between Ricky Lohse and the wall beside the glass doors, about one metre away from Ricky Lohse. Mr Harland was speaking to Ricky Lohse when he stepped forward and pushed Mr Harland in the chest with both hands. The force of the push slammed Mr Harland against the wall. Ricky Lohse then stepped to the side of Mr Harland and slammed his hands into the glass of the door, causing it to break. The guards tried to grab hold of him. He spun around and grabbed hold of a male patron sitting down at a table and punched that patron in the face, knocking him to the ground. When the patron tried to get up, Ricky Lohse tackled him to the ground and started hitting him again. Mr Harland and Ms Dunn pulled Ricky Lohse off the patron on the ground and tried to help him get up off the ground. Ms Dunn said that while they were helping the other patron up off the ground, Ricky Lohse ran and jumped the fence and ran off down the path. Mr Magann's evidence 21Mr Magann's evidence was that his duties for the night were to patrol the Hotel Premises and watch out for intoxication. He said that at about 9.30pm Ms Dunn approached him and pointed out a man who was standing drinking beer in the lounge and asked him to check to see if he was intoxicated. It is common ground that the man in question was Mr Terry Lohse, Ricky Lohse's father. Mr Magann observed that Terry Lohse was swaying on his feet. He approached him and spoke to him. He observed when speaking to him that Terry Lohse had slurred speech and his eyes were glassy. Mr Magann asked the man to "finish his drink off as it was time to go". He talked to him for a bit longer and then walked off. 22Mr Magann said that at about 10.05pm he noticed Terry Lohse sitting near the bar with Ricky Lohse. Mr Magann walked up to them and had a conversation with Terry Lohse. He told Terry Lohse that he had told him that he had to finish his drink off and that since he had finished his drink it was now time to leave. Ricky Lohse then started to argue with Mr Magann as to why his father should have to leave the Hotel Premises. Mr Magann told Ricky Lohse that his father had to leave because he was intoxicated. 23Terry Lohse got off his stool and started to walk along the bar area. Ricky Lohse then pushed Mr Magann in the back. Mr Magann turned around and said to Ricky Lohse, "Look mate he has got to go". Ricky Lohse replied, "He's my old man, leave him alone". Three other males came over at that point and pulled Ricky Lohse back and tried to calm him down. Mr Magann said, "He has got to go he's intoxicated". Clearly enough, Mr Magann was referring to Terry Lohse. 24While dealing with Ricky Lohse, Mr Magann lost sight of Terry Lohse. Ms Dunn and Mr Harland then came over to help stop the argument with Ricky Lohse. Mr Magann walked away to calm down the situation. He went through the bar area out to the entry and exit gate. 25Mr Magann said that when he noticed the altercation between Ricky Lohse and the patron referred to in Ms Dunn's evidence, he ran over. He saw a man sitting on a table with blood coming from his head, who said that "a bloke king hit" him. When Mr Magann asked him who it was, he pointed to Ricky Lohse. The man declined to identify himself. Ricky Lohse then came up and said that he wanted to fight Mr Magann. When Mr Magann said that he did not want to fight, Ricky Lohse then ran and jumped over the fence near the locked gate. Ms Stanfield's evidence 26Ms Stanfield's evidence, in a statement made on 2 March 2011 and tendered by Mr Smith, was that at some point late in the evening of 7 April 2007, Terry Lohse was asked not to drink any more as he was intoxicated. She did not speak directly to him, but was there in support of one of the other guards. She said that Ricky Lohse then arrived and started to get agitated and that in the end, both Terry Lohse and Ricky Lohse were asked to leave the Hotel Premises. 27Ms Stanfield said that they started to guide both Ricky Lohse and Terry Lohse towards the exit gate of the Hotel Premises. She said that they were not forcibly removing them but were simply guiding them towards the exit. Then Ricky Lohse slammed the door and broke the glass. At that stage, she walked away and used her mobile phone to call the police. While she was talking to the police on the phone, the other security guards attempted to restrain Ricky Lohse outside. She said that at some point Ricky Lohse jumped over the fence and "got away". Ms Stanfield was not sure whether she told the police that Ricky Lohse had jumped the fence or whether she made a second call to the police to tell them that he was travelling towards the main street area of Lightning Ridge. Mr Bouwmans' evidence 28Mr Bouwmans' evidence was that during the course of the evening he sat in the outside beer garden area with Mr Smith and four other friends, Neil, Pauline, John and Fiona. At some time during the evening, Mr Bouwmans observed security guards trying to remove a man from the Hotel Premises. The man, now known to be Ricky Lohse, was becoming agitated. Mr Bouwmans said that the security guards were trying to usher Ricky Lohse out the door, past the beer garden door, to a side entrance. As they tried to usher him through the door from the main bar into the outdoor beer garden, Ricky Lohse punched the glass on the door, breaking the glass. He then got into an altercation with another patron and, suddenly and without warning, started punching the other patron. 29Mr Bouwmans said that he and Mr Smith got up and moved away. Mr Bouwmans then noticed that Ricky Lohse was on the other side of the fence surrounding the outdoor beer garden. He said that Ricky Lohse was trying to get his leg up on top of the fence to come back into the beer garden. He said that the security guards were standing on the other side of the fence and Ricky Lohse decided not to come back over the fence. 30After Mr Bouwmans had observed Ricky Lohse at the fence, he and Mr Smith decided to finish their drinks and return to their motel. That decision was made about five minutes after Mr Bouwmans had seen Ricky Lohse on the other side of the beer garden fence. They walked to the end of the beer garden and went out into the car park through the northern entry and exit gate. They turned right after they went out of the gate, Mr Bouwmans walking a little in front of Mr Smith. Mr Bouwmans observed Ricky Lohse sitting with another man on logs in a garden area ahead of them. Mr Bouwmans decided to give Ricky Lohse a wide berth and keep clear of him. He walked to the left of the garden area. Mr Smith walked to the right of the garden area. It appears that Mr Smith's path was the more direct route to their motel. Mr Bouwmans heard the men in the garden area say a few words and Mr Smith replied. Mr Bouwmans does not know what was said. 31Mr Bouwmans said that Ricky Lohse then came out from behind the logs and yelled a few things, although again he could not remember what was said. Ricky Lohse picked up a rock about the size of a half brick and threw it at Mr Smith. Mr Smith moved away to avoid it. Ricky Lohse then picked up another rock and threw it at Mr Bouwmans. The second projectile also missed. 32Ricky Lohse then ran towards Mr Smith and "gave him one big hit". Mr Smith fell and appeared to be unconscious. Ricky Lohse and the other man came running at Mr Bouwmans and started to fight him. The other man was trying to grab Mr Bouwmans and Ricky Lohse threw punches at Mr Bouwmans and hit him a few times. Ricky Lohse and the other man then left. 33Mr Bouwmans got up and went over to see Mr Smith, who had blood running from his eye and was unconscious. Mr Bouwmans began to dial the emergency number, but as he was doing so, the police drove down Onyx Street. The police came over and began to treat Mr Smith's injury. Shortly afterwards an ambulance arrived. Mr Smith's evidence 34Mr Smith gave evidence that he arrived at the Hotel Premises at about 7.30pm. When he arrived, there were a lot of people and he had to wait for about five minutes to get in. Because there was live music, he paid an entrance fee of $5. Mr Smith went immediately to meet five friends who were already at the Hotel Premises, Neil, Pauline, John, Fiona and Mr Bouwmans. Neil and Pauline left at about 8.30pm and John and Fiona left about one hour later. Mr Smith said that from about 9.30pm to 10.30pm, the Hotel Premises were the busiest he had ever seen. 35At some stage after 9.30pm, Mr Smith and Mr Bouwmans decided to leave, although Mr Smith did not know precisely what time that was. They left through the northern exit and entry gate of the outdoor beer garden that was still open. They turned right towards Onyx Street, where they faced a small garden area. Mr Smith saw two males sitting there facing them. He passed to the right of the garden area between the bottle shop and the garden area. Mr Smith recalled walking towards the two men and remembers nothing until he found himself lying on the ground with Mr Bouwmans crouched over him. His next recollection was the ambulance and the police. 36In cross-examination, Mr Smith could not remember whether he had noticed anything in particular happening in terms of violent conduct or fights in the beer garden. He agreed that nothing had occurred that directly involved him in any incidents during the night. He also agreed that he did not notice any incidents in the Hotel Premises that night. 37When Mr Smith was being cross-examined, a call was made for all statements made to his solicitors. The only statement produced was one made by Mr Smith to the police on 1 May 2007. Subsequently, when Mr David Crossley, an expert called on behalf of Mr Smith, was about to give evidence, access was sought to all documents made available to Mr Crossley before he prepared his written report of 23 March 2012, which was tendered on behalf of Mr Smith. It emerged that Mr Crossley had provided to Mr Smith an earlier report dated 6 January 2012 and that, for the purposes of the earlier report, he had been provided with a copy of a statement of Mr Smith's dated 5 November 2010 (the 2010 statement). The 2010 statement had been prepared by Mr Smith's solicitor. The statement was then admitted into evidence. 38In the 2010 statement, Mr Smith said that at about 9.30pm to 10.30pm, he and Mr Bouwmans left the Hotel Premises from the beer garden section by way of the northern exit. That took them out into the car park area. They started to veer right, heading towards Onyx Street. As Mr Smith was walking towards Onyx Street, he noticed, from a distance of about ten metres, two men ahead of him both sitting on logs in front of the garden area. The two men were looking in his direction. He said that when he was about five to eight metres away from the two men, some words were exchanged. 39According to the 2010 statement, Mr Smith said to Ricky Lohse, "in a friendly manner", words to the effect of, "who has been a naughty boy then". The 2010 statement said that the two men said something back to Mr Smith but that he could not remember what they said or the manner in which they spoke. He continued walking and veered further right. He continued walking through the gap between the garden area and the northeast rear corner of the bottle shop, which was the most direct route to the corner of Onyx and Morilla Streets. He said that the next thing that he remembered was being on his side on the ground with Mr Bouwmans next to him, comforting him. 40The cross-examination of Mr Smith and Mr Bouwmans had been completed when the 2010 statement was first produced and the terms of the exchange with Ricky Lohse had not been put to them in cross-examination. However, no request was made for them to be recalled for cross-examination on the terms of the 2010 statement. Mr Bouwmans gave no evidence about Mr Smith using the words described in the 2010 statement. The COPS reports 41A COPS report created at 22.34 on 7 April 2007 records a report from Ms Stanfield's mobile telephone of an incident at Nobby's Nightclub, Lightning Ridge. The reference to Nobby's Nightclub is a reference to the Hotel Premises. The COPS report records the following: 3-4 PERSONS FIGHTING OUTSIDE THE BAR A/A AMBO NOT REQD, NIL WEAPONS INFT CALLING FROM NIGHTCLUB- LOT OF NOISE & DIFFICULT TO HEAR 22:38-CS183-VICTIM OFF AN ASS HERE-AMBOS 35YR OLD M C&B 22:39-CS202-2ND CAGED TRUCK TO LOC TO CONVEY 22:39-GD18-TRUCK BEING ORGANISED NOW 22:40-CS183-BLEEDING HEAVILY FROM FACE 22:44-CS202-GD18 & ½ CS183 OTW TO STN 1 ON BRD 42While the record says that it was created at 22:34, there is nothing in the material to indicate precisely when the police received Ms Stanfield's call. It is not entirely clear what the record means. However, it suggests that Ms Stanfield reported that three to four persons were fighting outside the bar at the Hotel Premises, an ambulance was not required and no weapons were involved. That appears to be a reference to the incident when Ricky Lohse smashed the glass in the door from the bar area. The subsequent entry suggests that at 22:38, a 35-year-old victim of an assault was observed and the ambulance was available. At 22:40, the victim was noticed to be bleeding heavily from the face. It is not entirely clear whether the record relates to the assault on Mr Smith or the earlier assault on the unnamed patron inside the Hotel Premises. 43Another COPS report created at 18:51 on 8 April 2007 indicates that Senior Constables Wilson and Paine attended the Hotel Premises from 22:36 to 22:44 the previous day and that Senior Constable Noffke attended from 22:44 to 22:59. The report refers to an assault at Onyx Street, near the intersection with Morilla Street. The location is described as: OUTDOOR/PUBLIC PLACE LAND FOOTPATH It appears to relate to the incident involving Mr Smith, since it refers to Mr Bouwmans. The reference to the times suggests that the entry at 22:38 also refers to Mr Smith. Mr Smith's Claims and the Decision of the Primary Judge 44The allegations in Mr Smith's further amended statement of claim in the District Court may be summarised as follows: Croote was the lessee and occupier of the Hotel Premises or controlled and operated the business carried on in the Hotel Premises; Dunns undertook to provide security for the Hotel Premises; on 7 April 2007, Mr Smith attended the Hotel Premises and Croote agreed, for reward, to accept him onto the Hotel Premises as a guest; while on the Hotel Premises, Mr Smith was physically assaulted by Ricky Lohse; prior to the assault, Ricky Lohse had been present within the bar area of the Hotel Premises and had exhibited violent and destructive behaviour to the knowledge of Croote and Dunns and had been removed from the bar area to another part of the Hotel Premises by agents of Croote and Dunns; each of Croote and Dunns knew or ought to have known that Ricky Lohse remained on the Hotel Premises; each of Croote and Dunns owed a duty to Mr Smith to exercise reasonable care to avoid harm to him; alternatively, it was an implied term of the agreement between Mr Smith and Croote that reasonable care would be exercised to avoid harm to Mr Smith; in the alternative, Croote is liable for the negligence of Dunns, who acted as the agent of Croote; each of Croote and Dunns breached its duty of care to Mr Smith and Croote breached its agreement with Mr Smith in failing: (i) to ensure that Ricky Lohse was removed entirely from the Hotel Premises; (ii) to provide supervision of Ricky Lohse to ensure that Mr Smith was safe from him; (iii) to call the police or arrange other security personnel to adequately protect Mr Smith from Ricky Lohse; (iv) to warn Mr Smith prior to his leaving the bar area and beer garden area of the Hotel Premises that there was a danger of harm from Ricky Lohse; (v) to prevent Mr Smith from leaving the bar area and beer garden area and from walking to the part of the Hotel Premises where he was assaulted; (vi) to protect Mr Smith by providing persons to accompany him off the Hotel Premises; (vii) to act on knowledge that Ricky Lohse was on the Hotel Premises or to satisfy themselves that he was not on the Hotel Premises; (viii) to have an adequate system in place to protect Hotel patrons from aggressive and violent patrons; (ix) to ensure that adequate numbers of trained and qualified security guards were present on the Hotel Premises; (x) to ensure adequate systems of communications between security staff and between Hotel staff and the police; (xi) to ensure that security staff were placed at the entrance and exit of the Hotel Premises after 9pm; (xii) to contact police promptly at an early stage in response to the aggression of Ricky Lohse in the bar and in the beer garden area of the Hotel Premises; (xiii) to detain Ricky Lohse, rather than releasing him, when he assaulted a security guard and another patron in the beer garden; and (xix) as a result of the alleged breach of duty of care and breach of contract, Mr Smith suffered damage and loss consisting of serious facial injury, including loss of an eye and psychiatric harm. 45The primary judge found that there was negligence on the part of both Croote and Dunns, in that neither Croote nor Dunns planned adequately for the night in question. First, his Honour found that Croote failed to implement a system of satisfactory communication between itself and Dunns, whereby a person on the Hotel staff would contact employees of Dunns in the event of trouble occurring in the bar or beer garden areas of the Hotel Premises where liquor was served. His Honour found that Dunns failed in a similar way to give sufficient thought to how such communication might be managed. 46Secondly, the primary judge found that it was not unreasonable for both Croote and Dunns to expect that approximately 300 people might turn up as a result of the attractions in the town on the day in question, being the horse races and goat races. His Honour found that, in the event of approximately 300 people being expected, eight security guards ought to have been provided rather than four, but that in substance only three were provided as Ms Stanfield did not have a full licence. His Honour found that the failure to provide at least eight guards amounted to negligence on the part of Dunns and Croote. 47The primary judge concluded that the risk of injury to a patron or patrons of the Hotel Premises by reason of inadequate planning and provision of inadequate numbers of security guards was foreseeable to both Croote and Dunns and that that risk was not insignificant. His Honour found that a reasonable person in the position of Croote and Dunns would not have been guilty of such failures. His Honour considered that there was a general risk that harm to patrons would occur if an adequate number of security staff were not provided and adequate planning were not undertaken and that such harm may well have been serious. His Honour found that the burden of taking precautions to avoid the risk of harm was not so great as to excuse Croote and Dunns from undertaking adequate planning and the provision of sufficient security guards. His Honour considered that the social utility of the activity, of people going about their business and enjoying a drink in a civilised manner, was such as to require precautions that Dunns and Croote did not take. 48However, his Honour found that the inadequacies of planning were not operative in causing Mr Smith's injury because, on the night in question, the system of communication that was actually provided was sufficient to control the relatively small crowd that was in fact present. Further, accepting that there were only approximately 100 people present, four security guards, or even three, plus Ms Stanfield, were sufficient to handle the small crowd and any disturbance that might occur, including the altercation between Ricky Lohse and other patrons and security guards. Therefore, his Honour found, the negligence of Croote and Dunns in failing to provide satisfactory communication and sufficient security staff was not operative in causing Mr Smith's injury, in that the negligence was not operative in producing the result that Ricky Lohse avoided the security guards, jumped the beer garden fence and escaped to the outer part of the licensed premises where he assaulted Mr Smith. 49The primary judge considered that although the police were in fact called on the night in question, they were called at a reasonably late stage in the altercation between Ricky Lohse and other patrons and security guards. However, his Honour said, that did not mean that had the police been called earlier, they would necessarily have been successful in apprehending Ricky Lohse before he jumped the fence. His Honour considered that there were many reasons why it was not probable that the police would have been successful in apprehending Ricky Lohse if they had been called earlier. One reason was that even if they had been called earlier, some time would inevitably have elapsed between their being called and their arrival, although that time was in fact quite short. Another reason was that they might simply have failed to get through the crowd with sufficient speed to lay hands on Ricky Lohse, who was intent on escaping over the beer garden fence. 50The primary judge held that the duty of care that Dunns owed Mr Smith did not require that Ricky Lohse be apprehended before he jumped over the beer garden fence. His Honour held that it was not the duty of Dunns' security guards to apprehend violent patrons such as Ricky Lohse. 51The primary judge held that even if one or two security guards ought to have been provided outside the bar and beer garden, in the area where Mr Smith was assaulted, and even if adequate radio communication by Croote and Dunns would have resulted in a message being given to a security guard or guards that a violent person had jumped the fence and escaped to the outer area of the Hotel Premises where Mr Smith was injured, one could not assume that the security guard or guards would probably have been successful in apprehending Ricky Lohse before he assaulted Mr Smith. It would have been necessary for the security guards to identify the potential assailant, Ricky Lohse, and then successfully apprehend him, before he struck Mr Smith. His Honour did not consider that, on the probabilities, the security guards would have succeeded in doing so, in circumstances where they would have had no more than a physical description of Ricky Lohse, which might have been similar to the descriptions of other people milling around the area in question. 52The primary judge also regarded the exchange between Mr Smith and Ricky Lohse as instrumental in the assault on Mr Smith. His Honour found that Mr Smith's statement should be accepted at its face value and that Mr Smith used the words set out in his statement. That was not disputed on behalf of Mr Smith. However, there was a question as to the tone in which the words were spoken, as will appear. 53The primary judge considered that when addressed to a man who was obviously intoxicated, as Ricky Lohse was, the words used by Mr Smith were "provocative". His Honour also considered that the use of the words allowed an inference that Mr Smith was generally aware in some way of Ricky Lohse having left the Hotel Premises and the reasons for it. His Honour considered that the use of the words "naughty boy", or something to that effect, implied that Mr Smith knew of some misconduct on Ricky Lohse's part. His Honour found that Mr Smith must have been generally, if not precisely, aware of Ricky Lohse's prior conduct and that Ricky Lohse was outside the Hotel Premises because of something that had occurred inside that meant that Ricky Lohse had been "naughty". His Honour found that, with that general awareness, Mr Smith's words were "provocative and knowingly so" [emphasis added]. 54The primary judge found that it was unsurprising that Ricky Lohse reacted as he did and struck Mr Smith, albeit that he had no lawful excuse to do so and was guilty of a crime in doing so. His Honour concluded that the "naughty boy taunt", as his Honour regarded it, constituted another causal factor contributing to Mr Smith's injury. 55Section 5D(1) of the Civil Liability Act 2002 (Civil Liability Act) provides that a determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm; and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused. 56Section 5D(2) provides that in determining in an exceptional case, in accordance with the established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the Court must consider, amongst other relevant things, whether or not, and why, responsibility for the harm should be imposed on the negligent party. 57The primary judge concluded that the test in s 5D was not satisfied. His Honour concluded that the negligence of neither Croote nor Dunns was a necessary condition of the occurrence of Mr Smith's harm. His Honour was not satisfied that, but for the action or the inaction of either Croote or Dunns, Mr Smith's injury would not have occurred. His Honour considered that the unwise use of the words "naughty boy", or words to that effect, to Ricky Lohse were sufficient to provoke him to assault Mr Smith. His Honour considered that the close proximity between the use of those words and the assault was such that any security guard stationed outside the Hotel Premises would probably not have had sufficient time to intervene and apprehend Ricky Lohse before he assaulted Mr Smith, even if it appeared that he was angered by the use of the words in question. The Appeal 58In his notice of appeal filed on 1 March 2013, Mr Smith raised five grounds on which he says that the primary judge erred in finding a verdict for Croote and Dunns. Several of the grounds have further particulars. Analysis of the particulars suggests a degree of overlap in the grounds, as will be explained below. The five grounds may be summarised as follows: (1)His Honour erred in concluding that the negligence of Croote and Dunns was not operative in causing Mr Smith's injury and in not making findings as to causation on the basis of the factual findings made in considering breach of duty. (2)His Honour erred in applying an incorrect test in finding that the assault on Mr Smith "might have" occurred even if there had been no negligence and in failing to apply correctly the relevant provisions of s 5D of the Civil Liability Act. (3)His Honour erred in failing to consider, or to give reasons for rejecting, critical parts of Mr Smith's case, including: (a)Mr Smith's claim in contract against Croote; (b)Mr Smith's claim that, during the protracted period when Ricky Lohse was observed to be aggressive, intoxicated, threatening and abusive, a number of steps should have been taken by Croote or Dunns that were not taken; (c)appropriate inferences were available as a result of Croote's failure to call any witnesses on factual issues and Dunns' failure to call any witnesses on factual issues other than Ms Stanfield; and (d)adequate systems of communication on the part of Croote and Dunns would have prevented Mr Smith's injury. (4)His Honour ought to have found that had eight guards been present and there had been adequate systems of communication, Mr Smith's injury would have been prevented. (5)His Honour ought to have found that the steps referred to in ground 3(b) should have been taken and that, had those steps been taken, Mr Smith's injury would have been prevented. 59Croote filed a notice of contention on 4 April 2013. In the notice of contention, Croote asserted that the primary judge erred in finding that it was negligent in undertaking inadequate planning and in providing inadequate numbers of security staff. 60It has been difficult to reconcile the submissions made on behalf of Mr Smith with the grounds of appeal. I have dealt with those of the grounds that were supported, as well as dealing with some contentions that went beyond the grounds. 61Mr Smith made no allegation of breach of statutory duty by failing to observe the provisions of the Liquor Act. However, he draws attention to the provisions of the Liquor Act on the basis that the obligations imposed by it inform the common law standard of care that must be adopted in relation to premises licensed under the Liquor Act, such as the Hotel Premises. Thus, s 2A of the Liquor Act provides that a primary object of the Liquor Act is the minimisation of harm associated with misuse and abuse of liquor, such as harm arising from violence and other anti-social behaviour. All persons having functions under the Liquor Act are required to have due regard to the need for harm minimisation when exercising functions under the Liquor Act. 62In furtherance of that primary object, s 103(1)(a) provides that a licensee or his or her employee may refuse to admit to the licensed premises, and may turn out or cause to be turned out of the licensed premises, any person who is intoxicated, violent, quarrelsome or disorderly. Under s 125(1)(b), a licensee must not permit intoxication or any violent or quarrelsome conduct on his or her licensed premises. Under s 125(3), no person may, on licensed premises, sell or supply liquor to any person who is at the time in a state of intoxication. 63Section 125(4) relevantly provides that where a person is intoxicated on licensed premises, the licensee is to be deemed to have permitted intoxication on his or her licensed premises unless the licensee proves that the licensee and his or her employees took the following steps, or all other reasonable steps, to prevent intoxication on the licensed premises: * asked the intoxicated person to leave the premises; * contacted, or attempted to contact, a police officer for assistance in removing the person from the premises; and * refused to serve the person any alcohol after becoming aware that the person was intoxicated. Notice of Contention: Finding of inadequate planning 64It is convenient to deal first with the question raised by the notice of contention. Mr Crossley was asked to assume, for the purposes of the opinions he was asked to give on behalf of Mr Smith, that there would be up to 500 patrons expected on the evening in question. That appears to have been put to him because that was the maximum permitted capacity of the Hotel Premises under the Liquor Act. However, no evidence was adduced to suggest that 500 were expected, other than the mere fact of the capacity of the Hotel Premises under its licence. 65There was no evidence from which an inference could have been drawn that a greater number of people were, or should have been, expected by Croote to attend on the night in question than did in fact attend. There was no evidence to support an inference that Croote should have made provision for sufficient security guards in the expectation of the attendance of up to 500 patrons. Constable Noffke gave evidence that the crowd in the beer garden on the night in question was similar to that on the same night in each of the previous two years. That evidence, taken with Ms Stanfield's evidence as to the number present on 7 April 2007, would indicate that, unless there were other factors or considerations that meant that a larger number of people were likely to attend in 2007, the same or a similar number should have been expected as had attended in the previous years. 66The primary judge erred in finding that there was a reasonable expectation of up to 300 patrons. A fortiori, there was no basis for concluding that either Croote or Dunns was in breach of any duty in relation to the planning for the night. There was no evidence to suggest that Dunns was asked to advise Croote on the numbers of security guards that should have been provided on the night in question. His Honour therefore erred in concluding that Dunns and Croote were in breach of a duty of care in not planning for numbers in excess of the numbers of those who actually attended. 67Once it is accepted that there was no negligence on the part of Croote or Dunns in relation to the planning for the night in question, it is unnecessary to deal with the primary judge's reasons for concluding that there was insufficient causal connection between breach of duty in not arranging for a sufficient number of security guards for an expected attendance of 500 patrons, on the one hand, and the assault on Mr Smith, on the other. However, it is desirable to say something about causation in dealing with the grounds of appeal. Grounds 1, 2 and 4: Operative Cause 68Ground 1 asserts that the trial judge erred in finding that: (a) there were only 100 patrons in attendance and that that was an intervening event that broke the chain of causation; (b)there were only 100 patrons present based on the evidence from Ms Stanfield and in failing to give reasons for the rejection of the evidence of Mr Smith on that point; (c)several other intervening events broke the chain of causation, when novus actus interveniens had not been pleaded or argued or foreshadowed by the primary judge; and (d)the negligence found by his Honour ceased to be a necessary condition of the occurrence of the harm. 69Ground 1 also asserts that his Honour erred in not making findings as to causation on the basis of the factual findings made in considering breach of duty. Grounds 2 and 4 also appear to be concerned with the finding that there was no causal connection between the negligence and the injury suffered by Mr Smith. 70Mr Smith challenged the primary judge's finding that only a small crowd of some 100 people attended the Hotel Premises on the evening in question. In essence, the material relied upon by Mr Smith in challenging the finding is that the maximum number of patrons permitted in the Hotel Premises under the Liquor Act was 500 and that 300 were permitted in the beer garden alone. He says that an inference should be drawn, from Mr Smith's evidence as to the crowd present when he arrived, and from the fact that the day in question was one of considerable festivity in Lightning Ridge, that the maximum number of patrons of 500 was present at the Hotel Premises on the night in question. 71Ms Stanfield gave evidence that at about 9.30pm, she had counted approximately 85 people in the Hotel Premises. She said that in the next hour the numbers increased by about 15 people, making a total of about 100 people. Constable Noffke arrived at the Hotel Premises at about 10.35pm. In his statement, Constable Noffke said that it was a small crowd for the evening, given that it was 10.30pm. He said that it was a family crowd with small children running around, that the beer garden itself was virtually empty and that there was not a great deal of people. Constable Noffke said that he had attended at the Hotel on the Easter weekend in the two previous years and described the crowd in the beer garden on the night in question as similar to what he had seen in previous years. 72The primary judge accepted that Ms Stanfield's head count was the best and only evidence of the precise number of people who in fact turned up. His Honour accepted that people probably entered and left the Hotel Premises continually and considered that it was not possible to say that the number of people that Ms Stanfield observed was necessarily the number of people on the Hotel Premises at the time of the altercation involving Ricky Lohse and the security guards. However, his Honour considered that the number of people actually on the Hotel Premises at different times was most unlikely to have amounted to 300. 73There was no error on the part of the primary judge in accepting the evidence of Ms Stanfield and in relying upon the evidence of Constable Noffke's statement. The primary judge was entitled to conclude that there were no more than 100 present at the time. Accordingly, there was no error in concluding that there was no causal connection between the failure to have adequate numbers of guards for 500 persons and the injuries suffered by Mr Smith. 74The question of factual causation in a case such as this is not to be answered simply by pointing out that Croote and Dunns owed a duty of care to take reasonable steps to prevent a violent assault, that Mr Smith was the victim of a violent assault and that the damage suffered by him was the very kind of thing that the relevant duty obliged Croote to take reasonable steps to prevent. Describing his injury as the very kind of thing that was the subject of the duty owed by Croote should not obscure the need to prove factual causation. This is not a case in which the evidence demonstrates that the taking of reasonable care would probably have prevented the occurrence of injury to Mr Smith (see Adeels Palace v Moubarak [2009] HCA 48; 239 CLR 420 at [51]). 75Further, the present case is not one where it can be said that, but for the failure to warn him, the assault on Mr Smith would not have happened. The question is whether certain additional factors, combined with the satisfaction of the "but for" test, were sufficient to establish causation. The "but for" test of factual causation was not established in the present case. It was not shown to be more probable than not that, but for the absence of additional security guards, whether at the exit or elsewhere on the grounds of the Hotel Premises, Mr Smith would not have been assaulted. That is to say, the absence of additional security guards on the night of Mr Smith's assault was not a necessary condition of his being assaulted. 76Even if providing additional security guards might have deterred or prevented the assault on Mr Smith, unless the failure to do so was a necessary condition of the assault it would be contrary to established principle to hold Croote and Dunns responsible in negligence. The act that occasioned Mr Smith's injuries was a deliberate criminal wrongdoing, which occurred despite the devotion by society of its resources to deterring and preventing such wrongdoing, through the work of the police force and the punishment of offenders who are caught. Mr Smith's contention that his injury was caused by Croote's failure to take steps that might have made Ricky Lohse's actions less likely should be rejected. Negligence that was not a necessary condition of the injury to Mr Smith, which resulted from the criminal wrongdoing of Ricky Lohse, was not a cause of his injury. Therefore, s 5D(1) was not satisfied (see Adeels Palace v Moubarak at [57]). 77Section 5D(2) refers to an exceptional case. An exceptional case is one in which negligence cannot be established as a necessary condition of the harm because the "but for" test of causation is not met (see Adeels Palace v Moubarak at [54]), but factual causation may still be established once regard is had to whether or not and why responsibility for the harm should be imposed on the negligent party. Even if additional security guards might have prevented the assault on Mr Smith, and might have been able to intervene in order to prevent injury once the assault began, that is not sufficient to conclude that this was an exceptional case within s 5D(2), such that responsibility for the harm suffered should be imposed on Croote or Dunns (see Adeels Palace v Moubarak at [56]). Grounds (3)(b), (c) and (d) and Ground (5): Failure to take relevant steps 78The particulars of Ground 3 (b) assert that the trial judge failed to consider, or failed to give reasons for rejecting, Mr Smith's contentions that a number of steps should have been taken by Croote or Dunns. The particulars of Ground 5 assert that the trial judge ought to have found that those steps should have been taken and that, if they had been taken, Mr Smith's injury would have been prevented. The steps may be summarised as follows: (i)Mr Woodhouse, the licensee, ought to have been contacted to control Ricky Lohse; (ii)the police ought to have been contacted at an earlier stage; (iii)after Ricky Lohse had left the beer garden, the police ought to have been given adequate information to allow his apprehension and the protection of Mr Smith; (iv)consideration ought to have been given to involving Terry Lohse, Ricky Lohse's father, in an attempt to calm Ricky Lohse; (v)Mr Magann ought not to have left the scene, thereby making himself unavailable to assist in controlling Ricky Lohse; (vi)Ms Stanfield, a person who was not lawfully licensed to take steps to assist in the control of Ricky Lohse, ought to have been replaced by a fully qualified guard; and (vii)reasonable steps ought to have been taken to control Ricky Lohse. 79In written and oral submissions, Mr Smith complained that the primary judge failed to deal with the following allegations: failure on the part of Croote to have systems or sufficient planning in place, apart from numbers of security guards; lack of adequate communication; failure to involve Mr Woodhouse or Terry Lohse; failure to call the police earlier; Mr Magann's exacerbation of the situation by walking away, leaving only two guards to deal with Ricky Lohse; provision of an unlicensed guard in the form of Ms Stanfield; failure to attempt to control or detain Ricky Lohse until the police arrived; failure to provide useful information to the police when they were called; and failure to place guards at the exit and to warn Mr Smith when he left the Hotel Premises that Lohse was still on the ground. It is convenient to deal with each of those complaints separately. Insufficient planning 80The entirety of the discussion between Dunns and Croote was to the effect that four guards were to be provided in the bar and the beer garden. Mr Smith says that it is clear that no other action was taken by either Dunns or Croote and that an inference should be drawn that no questions were asked by Dunns about Croote's previous experience of the event in question; how many customers were expected; or what should happen if there was trouble, such as calling the police or even informing the licensee. He complains that there was no walk-around or meeting between Dunns and Croote, by way of planning on the evening in question. 81Mr Smith asserts that if adequate planning had occurred, Mr Woodhouse, the licensee, would have been informed rapidly at 22:05, if not 21:30, that an intoxicated person was causing trouble. The police would then have been called immediately. When Ricky Lohse failed to co-operate, he would have been removed from the Hotel Premises entirely. Mr Smith says that, but for those omissions, the assault on him would not have occurred or the likelihood of an assault would have been significantly reduced. He says that the breach of duty in failing to plan adequately made a material contribution to the assault. 82However, Dunns was not involved in any planning and there was no allegation that they should have been. There is no evidence that Croote relied on Dunns' expertise as to the number of guards to be used. The agreement was that the security guards' duties would include the observation of patrons inside the bar and the lounge and in the beer garden. There was no evidence on which a finding could or should have been made that a greater number of people than 100 were or should have been expected to attend on the night, so as to require some further planning over and above the number of guards. There was no evidence that a walk-around or meeting would have made it any less likely that the assault would occur. For the reasons given above, there was no factual causation between the alleged lack of planning and the assault on Mr Smith. Lack of communication 83Mr Smith invites the Court to draw an inference that there was no adequate requirement for, or any expectation that there be, communication between Croote's employees, including the licensee, and Dunns' employees. He asserts that there ought to have been communication systems, such as walkie-talkies, and that had walkie-talkies been available when Mr Magann left the scene of the altercation, it would have been possible to call him back. The licensee could have been called and the additional guards would have provided additional deterrence and necessary force. Mr Smith says that radios would have ensured appropriate distribution and direction of the guards at a later stage, enabling communication of a good description of Ricky Lohse, to provide deterrence at the exit and to warn Mr Smith when he left the Hotel Premises of the possibility that Mr Lohse might be in the grounds. 84However, it is impossible to conclude that the availability of a means of radio communication between the security guards amongst themselves, and between the security guards and Croote's staff, would have had any bearing on the assault on Mr Smith. Mr Magann returned to the site of the altercation as soon as he became aware of it. His evidence was that he was only at the other end of the bar and returned as soon as he observed what was going on. There was no breach of duty under this head. In any event, there was no evidence that any lack of communication had any causal connection with the assault. For the reasons given above, there was no factual causation between the alleged lack of planning and the assault on Mr Smith. Failure to involve the licensee or Terry Lohse 85Mr Smith complains that Mr Woodhouse was never informed of what was happening. However, there was no evidence as to where Mr Woodhouse was at the time of the events in question, such that informing him of Ricky Lohse's conduct would have resulted in his immediate presence. In any event, it is difficult to see what Mr Woodhouse would have been able to do that the security guards did not. Mr Smith suggests that the licensee could have threatened to impose sanctions on Mr Lohse, including bans on his future attendance at the Hotel Premises. Having regard to Ricky Lohse's conduct on the night, it is highly unlikely that such a threat would have had any effect upon him. It is clear that there are other locations in Lightning Ridge where Ricky Lohse would have been able to consume alcohol if he wished. 86The suggestion that appealing to Terry Lohse would have had any relevant consequence is nonsensical. Terry Lohse was so intoxicated that he could barely stand up. To suggest that he may have been able to calm his son, in circumstances where his son had to come to his father's aid when the security guards asked him to leave, borders on the absurd. Failure to call the police earlier 87Mr Smith complains that Ricky Lohse was known to be intoxicated and uncooperative by about 9.30pm. He says that Croote did not take all reasonable steps as contemplated by the Liquor Act. He says that by not removing him from the Hotel Premises, Croote was committing an offence, although counsel eschewed any assertion of a breach of a statutory duty. Mr Smith asserts that it was mandatory to call the police virtually immediately and that the police ought to have been called immediately when there was resistance. Mr Smith says that had the police been called immediately or at an earlier stage, they would have attended very quickly. When they were eventually called, they attended within four minutes of the call. He says that if the police had attended earlier, they would have been able to bring the situation under control and either ensure that Ricky Lohse was taken home with his father or at least taken well away from the Hotel Premises. 88It is difficult to see what the real complaint is about calling the police. Terry Lohse was removed by the security guards when it was apparent that he was intoxicated and still drinking. Ricky Lohse was aggressive when his father was asked to leave and the security guards acted to remove him. As soon as it became apparent that Ricky Lohse was resisting, Ms Stanfield telephoned the police and the police arrived soon afterwards. 89A reasonable conclusion to be drawn from the evidence is that the police were called promptly when it became apparent that Ricky Lohse had become violent, by striking another patron and breaking the glass door. It is possible that the police had in fact arrived at the Hotel Premises before the assault on Mr Smith. That is an inference that can possibly be drawn from the COPS report. In the circumstances, I do not consider that there was a failure on the part of Croote or Dunns to act promptly. There was no failure to comply with the provisions of the Liquor Act. Conduct of Mr Magann 90Mr Smith complains that in the encounter with Ricky Lohse, Mr Magann somehow exacerbated the situation and that his reaction was simply to walk away. He complains that Mr Magann walked well away from Ricky Lohse, leaving him with Ms Dunn, Mr Harland and Ms Stanfield. However, the clear evidence is that as soon as it was apparent that Ricky Lohse was becoming violent, Mr Magann returned to the spot where the altercation was taking place to give assistance. There is no basis for complaint about Mr Magann's conduct in the circumstances. Provision of an unlicensed guard 91Mr Smith complains that Ms Stanfield did not have an appropriate licence for crowd control and would have been committing an offence if she had become involved in crowd control. He says that Ms Stanfield did nothing active but stood back and observed, the only explanation being that she did not have the appropriate licence. Mr Smith says that if more guards had been present, they would have been more likely to be successful in controlling an aggressive patron such as Ricky Lohse. 92Ms Stanfield had applied for, and was issued with, a relevant licence in June 2006. She believed that it was a licence that included crowd control. She renewed her licence in June 2007 and the renewed licence extended to organising crowd control. She had done no further study or training between December 2005 and June 2007. A reasonable conclusion to draw is that the failure to issue her with a full licence in June 2006 was an error on the part of the regulating authority. Ms Stanfield was always entitled to hold a full licence and believed that she did. 93In any event, no causal connection between the status of Ms Stanfield and the assault on Mr Smith has been demonstrated. There is no basis for this complaint by Mr Smith. Failure to control or to detain Ricky Lohse until the police arrived 94Mr Smith asserts that for one hour after Ricky Lohse was found to be agitated, and certainly from 22:05, there was no progress in removing him from the Hotel Premises. He complains that Ricky Lohse hit another patron and was then allowed to jump over the beer garden fence. Mr Smith says that there was no attempt to require Ricky Lohse to sit down or to restrain him, apart from an attempt to grab hold of him at the time when he smashed the glass door. Mr Smith asserts that there was nothing to suggest that Ricky Lohse could not have been controlled. He says that the evidence suggests otherwise and that, accordingly, he should have been restrained. 95The police were called no later than 22:34. Detaining Ricky Lohse was neither a reasonable nor practical response once he became violent. Mr Crossley, the expert called by Mr Smith, said that he would always agree that negotiation with a patron is the primary response before physical restraint should be used. He said that there comes a time, when security officers are peacefully attempting to negotiate with a patron to leave, when it is clear that the person is either too affected by alcohol or is physically too imposing or is irrational, such that a better option is to have the police deal with the issue. 96Mr Crossley did not suggest that Dunns were in any way at fault by failing to detain Ricky Lohse. Mr Rowe, who was called on behalf of Dunns, said that it would not normally be recommended for security personnel to arrest an offender for an assault on an unarmed person who said that he was okay,. There is no substance in this complaint. No useful information provided to police 97Next, Mr Smith complains that, according to the COPS record, when the police were finally called they were told simply "3-4 PERSONS FIGHTING OUTSIDE THE BAR A/A AMBO NOT REQQ, NIL WEAPONS". He says that no information was given to describe Ricky Lohse, who had a distinguishing facial mark, and police were not told that he had been seen jumping over the fence of the beer garden to another part of the Hotel Premises. He also complains that no attempt was made to send guards to the exit to look for Ricky Lohse, nor was any information given to the police when they arrived. He points out that Constable Noffke said that the police would have "reacted to them" had such a notification been provided. 98There was no suggestion that the police had difficulty finding Ricky Lohse. The security guards believed that he had left the Hotel Premises and was heading towards town. There is no basis for concluding that any failure to provide a description to the police had any causal connection with the assault on Mr Smith. No guards placed at the exit 99Mr Smith contends that two guards could have been placed at the entry and exit point at the north of the outdoor beer garden. He says that such guards could have kept a lookout for Ricky Lohse and could also have warned Mr Smith when he was leaving, by pointing out that Ricky Lohse had been violent and had jumped the fence. Once again, it is difficult to see any causal connection between such a failure and the assault on Mr Smith. 100Mr Bouwmans gave evidence that he observed the earlier incident involving Ricky Lohse punching the glass door, getting into an altercation with another patron and later standing on the other side of the fence that enclosed the outdoor beer garden. He said that he and Mr Smith moved away from the scene of the altercation involving Ricky Lohse and the security guards and then decided to leave shortly afterwards. They saw Ricky Lohse after they had left the beer garden. Mr Bouwmans went the long way around, presumably to avoid Ricky Lohse. Clearly enough, he was mindful of the possible risk. Mr Smith, on the other hand, decided to take the shortest way and appears to have parted from Mr Bouwmans. What is more, he was indiscreet enough to make the comment that he made. It is impossible to conclude that there was any causal connection between any failure to station guards to warn departing patrons that Ricky Lohse might still be in the grounds, on the one hand, and the assault on Mr Smith, on the other. Use of knowingly provocative language 101Although it was not a ground of appeal, Mr Smith challenged the primary judge's finding that he used the words, "who's been a naughty boy then" as a knowing taunt and that the use of those words was knowingly provocative. Mr Smith complains about the finding that the words were "knowingly" provocative, in circumstances where his 2010 statement asserted that they were said "in a friendly manner" and Mr Smith was not recalled to the witness box so that the suggestion that he used the words in a knowingly provocative manner could be put to him. Mr Smith accepted in his submissions that the finding was not identified as a ground of appeal in his notice of appeal. 102As I have indicated, Mr Smith's 2010 statement, in which he said he used the words "naughty boy", did not come to light until after his cross-examination had ended. While both Croote and Dunns pleaded in their respective defences that Mr Smith was guilty of contributory negligence by reason of a verbal exchange with Ricky Lohse before he was assaulted, nothing was put to Mr Smith in cross-examination to suggest that there had been any such exchange. Further, no request was made for Mr Smith to be recalled once the statement came to light so that it could be put to him that the words were "knowingly provocative" or that the words were spoken as a "knowing taunt", as the primary judge characterised the exchange. Thus, it was unfair to make a finding as to Mr Smith's subjective state of mind. On the other hand, whether or not the words were used in a "friendly manner", as Mr Smith asserted in his statement, it was open to his Honour to conclude that the use of the words was objectively provocative and by way of a taunt. Mr Smith's subjective state of mind was not relevant. Mr Smith's challenge to the findings made by the trial judge must fail. It is therefore unnecessary to deal with the consequences of upholding the challenge. Ground 3(a): Claim in Contract 103Mr Smith asserted that it was an implied term of the agreement between himself and Croote that reasonable care would be exercised to avoid harm to him. Whether or not there was such an implied term of their agreement, breach would depend upon whether there was a failure to take care on the part of Croote and whether that breach resulted in the injury to Mr Smith. Those are the same factual questions as are raised by Mr Smith's claims in negligence. For the reasons indicated above, those claims fail. Quantum of Damages 104The primary judge concluded that Mr Smith had failed to establish liability in negligence on the part of either Croote or Dunns in causing the injury suffered by him. Nevertheless, his Honour made findings as to the damages that he would have awarded had he found Mr Smith's case in negligence established. In his notice of appeal, Mr Smith says that in assessing damages for economic loss, his Honour failed to consider evidence, or failed to give due weight to evidence, as to Mr Smith's permanent visual problems, in combination with psychiatric problems, and ought to have made a higher assessment of Mr Smith's economic loss than the amount found. The total amount claimed for economic loss, past and future, was $825,000. Mr Smith contends that the figure of $250,000 found by the primary judge was outside the range of figures that would have been appropriate. He contends that there was overwhelming evidence concerning both physical and psychiatric impairments, such that he would have trouble ever working. 105Croote contended that since Mr Smith had returned to his ordinary pre-injury work after the incident, the primary judge made no error in accepting that he was able to perform his ordinary pre-injury work. Mr Smith was offered retrenchment on 8 May 2008 or offered another job. He said that he would still be working in his normal job if he had not been offered redundancy. Subsequent to stopping work with his usual employer, he had moved around and undertaken various jobs. Croote contended that Mr Smith did not establish that he had been off work because of his injury and did not establish that he would remain off work on a long-term basis because of the injury. It says that the assessment of $250,000 is discretionary and that Mr Smith has not demonstrated any error of principle on the part of the primary judge in his approach to that assessment. Dunns adopted those submissions. 106It is not necessary to decide this question. However, I would be disposed to conclude that there was no error on the part of the primary judge. Conclusion 107Croote has established that the primary judge erred in finding that there was a breach of duty in failing to plan for attendance of upwards of 300 patrons. Mr Smith has not established that the primary judge reached an erroneous conclusion in directing a verdict for Croote and Dunns. It follows that the appeal should be dismissed. Mr Smith should pay the costs of Croote and Dunns. ********** 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. Decision last updated: 07 March 2014