Smith v Croote Pty Ltd  NSWCA 35 (Meagher JA at ; Ward JA at ; Emmett JA at .)
|Catchwords||TORTS – negligence – dangerous premises – injuries to persons entering premises – whether hotel proprietor and security provider liable|
Emmett JA (Meagher and Ward JJA agreeing):
1 MEAGHER 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.
2 The 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.
3 Mr 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.
72 The 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.
73 There 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.
74 The 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  HCA 48; 239 CLR 420 at ).
75 Further, 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.
76 Even 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 ).
77 Section 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 ), 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 ).
Brisbane Barrister – David Cormack