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Karimi v Allied Security Group Pty Limited & Anor [ 2009] HCATrans 212  (4 September 2009)

Last Updated: 9 September 2009

 [2009] HCATrans 212 

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S32 of 2009

B e t w e e n -

TARIQUE KARIMI BY HIS TUTOR QUDSIA ASKARZADA

Applicant

and

ALLIED SECURITY GROUP PTY LIMITED

First Respondent

ROOTY HILL RSL CLUB LIMITED

Second Respondent

Office of the Registry
Sydney No S33 of 2009

B e t w e e n -

TARIQUE KARIMI BY HIS TUTOR QUDSIA ASKARZADA

Applicant

and

ROOTY HILL RSL CLUB LIMITED

First Respondent

ALLIED SECURITY GROUP PTY LIMITED

Second Respondent

MICHAEL GORDON SMITH

Third Respondent

Applications for special leave to appeal

FRENCH CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 SEPTEMBER 2009, AT 2.27 PM

Copyright in the High Court of Australia

__________________

MR G.O’L. REYNOLDS, SC: May it please the Court, in both applications I appear for the applicant with my learned friend, MR P. BIGGINS. (instructed by David Legal)

MR M.L. WILLIAMS, SC: May it please the Court, I appear with my learned friend, MR R.C. SCRUBY, for the second respondent in S32 and the first respondent in S33, Rooty Hill RSL Club. (instructed by McCabe Terrill Lawyers)

FRENCH CJ: There is no appearance for the first respondent in S32 and no appearance for the second and third respondents in S33. The Court has been advised that Allied Security has been placed into liquidation, as has its insurer and that Mr Smith has been served. Yes.

MR REYNOLDS: If your Honours please, on 31 July of this year, this Court granted special leave to appeal in a case of Adeels Palace Pty Ltd v Moubarak. That case, like this one, involves the liability of a club – in that case, a nightclub – for an injury sustained by one of its patrons, which was caused by another violent patron. That case raises questions, first of all, on duty of care, second of all on breach, and third of all on causation, although the focus seems to have been in the submissions, both in writing and orally, on the question of duty.

Two of the factors that were said to be relevant to both duty and breach in that case, are also alive in this case. Your Honours will have seen from our submissions, in the original submissions which are to be found at page 76, at about line 15, that we argued that a very high standard of care was owed by the Club given its statutory obligations under the Liquor Act and its provision of liquor to the villain, Smith; the profits it made from patrons and its operation of such a notorious bloodhouse and that these were matters which informed the content of a relevant standard of care.

Now those two matters, the creation of an environment for profit and the liquor legislation loomed very large in the decision in Adeels Palace in the Court of Appeal. Your Honours have a copy, I hope, of a folder of authorities relevant to this matter and behind tab 1 the decision of the Court of Appeal in Adeels Palace is to be found. May I take your Honours briefly to that decision, in particular to paragraphs 73 through to 75 where, beginning at paragraph 73, there is a reference to the decision of the Victorian Court of Appeal in the Club Italia Case. Your Honours will see from the extract there that one of the matters relevant to the scope of the duty of care according to the Victorian Court of Appeal was, and this is in the quote in paragraph 73, that:

the club was . . . in the course of its business, creating a potentially dangerous situation on its own premises . . . Persons in the position of the club realise that in the course of their business they are attracting potential trouble-makers to their premises . . . it is they who have invited the potential criminal to their premises and created the environment in which the criminal activity has occurred.

Likewise, at paragraph 71, above that, and I will not read this to your Honours, paragraphs 71 and 72, the Court of Appeal held that the various provisions of the Liquor Act and the obligations and duties thereunder were relevant to the issue of whether or not a duty of care should be found, and in particular - this is in the quote in paragraph 71 - that the object of the Liquor Act was:

“the minimisation of harm associated with the misuse and abuse of alcohol (such as harm arising from violence and other anti-social behaviour)” -

Your Honours will have seen that we submit that both of those matters are relevant in this case, not on the question of duty, of course, because there was a finding in my client’s favour on duty. But we submit these were matters which the Court of Appeal should have taken into account in finding a higher standard of care than found by them. The Court of Appeal, at paragraph 33, did refer to the legislation but did not elevate the relevant standard of care by reference to those matters.

Now, given that this Court has granted special leave in Adeels, we submit that it is convenient to deal with those two arguments and the other arguments which we have in conjunction with that case, particularly given, and your Honours will have seen this from our submissions, that this is a case within a very short factual compass. There are only, I think, about 170 pages of transcript and where there are very few - - -

GUMMOW J: It is put against you, Mr Reynolds, at pages 84 and 85, that this is indeed a very fact-specific case.

MR REYNOLDS: I have submitted in argument in-chief and in reply that, notwithstanding that all of these cases, in one sense, turn on their facts, these two matters which are live in Adeels - and I should have perhaps added that in Adeels at paragraph 60, it was noted that there “was a flow-on” on the issue of relevant duty “to the questions of breach and causation”. Although all of these cases, in one sense, are fact specific, these two particular issues, which we advert to, are relevant here.

Moreover, we have in our submissions, raised, we submit, an enormous number of difficulties, if I may be frank, with the reasoning of the Court of Appeal. There are six matters referred to on breach in the Court of Appeal. We have disputed every single one of them in our submissions and, indeed, we have disputed every single aspect, again if I may be blunt, of the Court of Appeal’s reasoning on both breach and also on causation. It is emblematic, we submit, of the difficulties which the respondent has in defending this case that many of these criticisms have not even been the subject of any response by my opponent in their submissions.

FRENCH CJ: Are you saying it is really a visitation case?

MR REYNOLDS: I am indeed, and with all due respect to the Court of Appeal, I say that there could be no stronger case for visitation than this one. As your Honours no doubt have sifted through the various points which we have made in our submissions, we have challenged left, right and centre every single aspect of the reasoning of the court on both breach and causation, and when your Honours see the submissions in reply, we have noted at paragraph 3 of our submissions on page 91 that many of the criticisms of the judgment by my client are not the subject of any response and we give references, and that there are a number of attempts - this is in paragraph (b) - to raise new arguments in the style of a notice of contention in order to defend the result breached by the Court of Appeal.

There are, moreover, very clear errors. For example, the error in relation to the four minutes, your Honours will see at paragraphs 18 and 19 on page 93, that there is no attempt to defend that particular error. Now, I do not have time in 20 minutes, obviously, to attack root and branch in detail, all of these holdings, but we submit that there has not been a proper rehearing of this case for whatever reason and that it is, as your Honour the Chief Justice put to me, a case for visitorial intervention.

There are, of course, the other two issues which are live already in the Adeels Palace Case and I submit that those issues would also warrant special leave. We have mentioned also a few other points and I mention them briefly. The first is the interpretation of section 5B, that is the breach provision in the Civil Liability Act, which is behind - - -

GUMMOW J: It is said that that was never argued below.

MR REYNOLDS: There is no doubt about that, your Honour, but –

GUMMOW J: Why should we get involved?

MR REYNOLDS: Because it is - - -

GUMMOW J: The common law Bar seems to be slow to wake up to that statute.

MR REYNOLDS: Well, your Honour, the issue that we raise is the question of whether it operates in the same way as the common law. Now, all of the judges necessarily had to look to section 5B in determining the question of breach. Now, the fact that they did not and no particular point was made in relation to it, we say, in one sense is neither here nor there. The issue is how does that provision work - your Honours are going to have to - - -

GUMMOW J: .....seeking special leave here.

MR REYNOLDS: Your Honour, I understand it was not a matter that was developed below, but we submit it does arise and it ought to have been dealt with below. That is one of the other difficulties, that there was no adversion in the Court of Appeal to many of the matters that are relevant to breach under section 5B, for example, “the burden of taking precautions” in paragraph (2)(c). It would have been very easy, for example, to have provided an escort to Mr Karimi. It would have taken about a minute of somebody’s time for that to have been done. Also, this question of, if I may point to (2)(d) - - -

GUMMOW J: Escort to where?

MR REYNOLDS: To 5B (2)(c) “the burden of taking precautions”.

GUMMOW J: Yes, I know, but an escort to do what, an escort to what end?

MR REYNOLDS: To escort him to his car - - -

GUMMOW J: And then what?

MR REYNOLDS: Well, your Honour, other than seeing him off the premises, and the car park was part of the premises, we submit nothing further needed probably to be done in this case. I can go to that issue, that is the question of the failure of the security guards to escort Mr Karimi to his car. We say that it is obvious, with all due respect, that reasonable care required this to occur for any number of matters. Can I briefly indicate why? The Club knew that Mr Karimi had been the innocent victim of an earlier assault. He was, as the trial judge held, manifestly vulnerable to a renewed attack. The aggressor, Smith, was known not only to be drunk and angry and volatile, but also a boxer. The trial judge held that the Club ought to have known that Smith was potentially dangerous. He had been acting violently previously, and had attacked Mr Karimi previously. As I said a moment ago, it was a very simple precaution to take and Mr Smith had earlier threatened to go back and, if I may use the colloquialism, “‘tea bag’, Mr Karimi”. I gather your Honours know what that means from - - -

FRENCH CJ: No, it is not “tea-bagging”, actually, it is something else. There is a distinction, but you need not worry about it.

MR REYNOLDS: Perhaps we will not go there, your Honour, but at any rate he had threatened to go back and treat him in an aggressive way. There were also guidelines, this is to be found in the judgment at pages 7 to 8, about managing evictees when they are outside and taking them to their vehicle. That again was not followed. There is a standard procedure - this is noted at page 9D at line 49 - to escort all staff to their cars. Both car parks were part of the Club premises.

The primary judge held at page 9F at line 33 that the Club knew that Smith still “harboured aggressive feelings”, and of course, there are the two points raised in Adeels Palace Case and there was a likelihood of seriousness of harm, in the case of a boxer like Smith, possibly death or at least, as here, very, very serious injury.

The only two matters that were raised relevant to this head of negligence, and there were three heads of negligence that succeeded at trial, were first of all that security formed the view, in their own minds, that Smith had calmed down. We have dealt with that in our submissions at page 75 of the application book at paragraph 25, and also in reply, at pages 94 to 95, in paragraphs 33 to 34. The only other matter that was raised on breach by the court below was that Mr Karimi was left in the company of others, but again we have dealt with that in our submissions on page 77 at paragraph 35.

Now, with all due respect, your Honours, that reasoning compared with some of the matters that I have raised very briefly before is wafer thin, wafer thin. It is a clear case of negligence, and we cannot even get our opponents to raise decent arguments in reply in these submissions to defend this decision. On causation, if I could go to that on this point, the court - - -

FRENCH CJ: The epithets do not help the force of your argument much, Mr Reynolds.

MR REYNOLDS: Well, your Honour, I have, as I understand it, on a case of miscarriage, on visitorial jurisdiction - - -

FRENCH CJ: I understand that.

MR REYNOLDS: I have to go in and demonstrate manifest error and, with respect, I submit that that exists here. The Court of Appeal gave only one reason for finding no causation here and that is that they held that a security guard would not have inhibited the attack, but as we point out at page 78 of the application book, they did not deal with the trial judge’s reasoning about actually defending him from attack rather than inhibiting that attack. On the question of staggering, that could have been solved very easily simply by staggering the departures so Mr Karimi went home first. That would have prevented this and it would have been a very simple precaution.

So, your Honours, there is already a case in this Court on like issues and we submit with as much force as is appropriate, and I hope no more, that this is a strong case on miscarriage. I cannot do other than develop one of the aspects of negligence and one issue of causation here on my feet this afternoon, I do not have enough time, but, as your Honours will have seen,

there is an enormous amount of matters that we raise in relation to the other breaches. It is, if I may respectfully say so, a rather sad case, a case where the primary judge held, apparently without difficulty, that there was negligence and that causation was established and we submit that it may very well be that the plaintiff in the Adeels’ Case succeeds on a basis which would have resulted in my client succeeding also and we submit that he would have, that is, my client, a legitimate sense of grievance if that were to occur. If your Honours please, those are my submissions.

FRENCH CJ: Yes, thank you, Mr Reynolds. Yes, Mr Williams.

MR WILLIAMS: Your Honours, there are a number of obstacles in the path of the applicant and we will deal with the more fundamental ones first which make it unnecessary to go and parse and analyse every suggested error in the Court of Appeal’s judgment. Firstly, the primary case sought to be put by the applicant here depends upon matters which were not put to the relevant security guards at the trial and that is the proposition on which Justice Bell centred, that is, that it was unreasonable for the guards to have concluded that Smith had calmed down and no longer represented a threat before he left the club.

Her Honour Justice Bell found that the guard’s assessment was a critical matter at paragraph 59 of page 53 of the book and noted that there had been no challenge. The critical point was that there was no challenge to that evidence. Now, no Warren v Coombes point arises here, your Honours. What the Court of Appeal did was precisely what Warren v Coombes permits it to do, and that is consider evidence and make a finding that was not made by the trial judge.

Can I take your Honours back to what the trial judge said about this question of whether the man had appeared to calm down over, we say, eight minutes or so. The only mention of it, your Honours, is at paragraph 19 at page 7 of the book, a very brief mention by the trial judge, whereas there is very detailed consideration of the evidence on this critical topic by the Court of Appeal. At paragraph 19, his Honour says:

Smith and Ms Cameron –

that is Smith’s girlfriend –

were escorted to the eastern foyer by security staff including Mr Pale-Eli –

who was one of the guards –

He said Smith was initially agitated but later appeared to calm down.

That was as far as his Honour went on that critical part of the evidence. In contrast, Justice Bell dealt with it at paragraphs 22 to 24 starting on page 40 and going on to page 41 of the book. Her Honour notes that:

the evidence of the circumstances surrounding the removal of Mr Smith came from three of the security guards.

Paragraph 22 deals with Mr Pale-Eli’s evidence. He says at first he had been agitated, and then at line 30, “However, he calmed down.” Line 38:

Before they parted Mr Smith shook his hand. Mr Pale-Eli heard the guards say to Mr Smith that if he had other problems at the Club he was to approach the security staff and let them deal with the matter –

Paragraph 23 deals with the evidence of the next guard, Mr Scholes, line 52. he had taken off his shirt and he wanted to fight someone, but then the security guards tried to calm him down and they moved him out to the footpath:

By this time he had calmed down and put his shirt back on. When he and Ms Cameron left he was walking in a normal fashion.

Paragraph 24 on page 41 deals with Mr Peterson’s evidence. He says at line 28:

Mr Smith did calm down and he agreed that he would see the security staff in the future. Ms Cameron said that she was taking him straight home.

Now, her Honour returned to that at paragraphs 62 to 65, which are on pages 54 and 55 of the book. Paragraph 62:

The initial incident occurred at about 11.10pm. The security staff spoke with Mr Smith for 10 minutes after he was escorted out of the Club. Over this interval he appeared to calm down.

There is some further reference to Mr Pale-Eli’s evidence there. Paragraph 63, a reference to Mr Scholes again, who said that Mr Smith had quietened down and that “it was all over”. Then Mr Peterson at paragraph 64 gave a statement in which he says much the same thing. Paragraph 65:

Mr Peterson thought that Mr Smith had calmed down and was not going to present any more trouble that night.

Now, there was, as her Honour said at paragraph 66, even if the assessment be wrong, it was significant:

that there was no challenge made to the security guards that the assessment had not been conscientiously made or that it was unreasonable.

That, with respect, is the critical factual difficulty standing in the path of any of the arguments that are put because anything else smacks of reasoning from hindsight rather than by looking forward from the position of the reasonable man and the person with the security guards at the time. The next fundamental difficulty is, as your Honour Justice Gummow has raised, that the applicant seeks to rely upon provisions of the Civil Liability Act which were not even the subject of pleadings, submissions or particulars in either the trial or the Court of Appeal.

Your Honours, this is a case not about the issues raised in Adeels Palace or in even the Tasmanian case of Scott v CAL No. 14, which was heard this week and was mentioned in the special leave application in Adeels’ Case. This case is about breach and about the reasonableness of the response to the risk and, in our submission, does not raise issues such as those that may occur in Adeels. The significant point is not that there was a finding against the Club on the point of duty, but that the Club had conceded duty in accordance with authority. That concession is most readily found, your Honours, at paragraph 35 at page 45 of the book, a conventional statement of authority which came from the Court of Appeal decision in Spedding v Nobles that we owed “a duty to exercise reasonable care” as regards intoxicated or dangerous customers and that that “duty extended to the protection of a patron while he was on or departing from the premises”.

Your Honours, the proposition that is put in the applicant’s summary at paragraph 25(v), which is to the effect that Smith had only calmed down after eight minutes of violent behaviour, is, with respect, wrong. The video tape and the evidence to which we have taken your Honours establishes clearly, in our submission, that after his initial agitation, when he was put out the front door, he had calmed down for quite some time and the assessment of the three security guards that he no longer posed a threat and was going home with his girlfriend was a reasonable response to any perceived risk of him causing further trouble. There was no challenge to the evidence that he and his girlfriend promised that they were going to go straight home.

Your Honours, as to causation, the matters that we list in paragraph 12 of our submissions are legitimate support for the finding of causation by the Court of Appeal and with the exception of the reference to

Mr Dale, the first aid officer, they were, in fact, relied upon by her Honour Justice Bell in overturning the causation finding. There is no basis, with respect, for suggesting that this is a notice of contention point.

As to the staggered departure point which is raised in paragraphs 31 and 32 of the reply, there is no basis, with respect, for suggesting that a 15-minute stagger or a 30-minute stagger, which was the proposition put by the applicant’s expert, should have been imposed. There was a delay between Mr Smith and his girlfriend leaving the front foyer and Mr Karimi being released by the guards at the other side of the Club and that was an adequate response, in our submission.

If, your Honours, Smith was prepared to get in the car, go round to the other side of the Club and launch an assault in the vicinity of the foyer where there were other security guards less than 10 metres away and in the immediate vicinity of Karimi’s friends where it was inevitable that he was to be apprehended, it cannot, with respect, be concluded that the presence of another guard standing beside Karimi would have deterred or prevented the attack. For those reasons we submit that special leave should be refused, if the Court pleases.

FRENCH CJ: Yes, Mr Reynolds.

MR REYNOLDS: Your Honours, can I just deal with that last point. I mean, to suggest really that a trained security guard standing next to this man would not have prevented this assault, with all due respect, is an impossible submission. It has to be more likely than not that a trained security guard standing next to this man, escorting him to his car, is more likely than not to have stopped this assault. That is the reasoning that presents in the court below, adopted by my friend now. I mean, really, with all due respect, the trial judge found a suitable security guard, somebody who is trained to deal with these situations, would not have been more likely than not to have stopped this assault from happening. That cannot be right.

Now, on the question of calming down, which is the other substantial point apparently raised against us, we deal with this in our submissions at page 75 at paragraph 25 and, in particular, at paragraph (vii), that the primary judge took into account – and my learned friend took you to this – that Karimi had appeared to calm down. That was taken into account on breach. The question is whether or not, having formed that view, it was reasonable not to take the simple precaution to take the first breach that I have talked about simply for a security guard to escort him to the car. Now, we suggest there a variety of reasons why that was what reasonable care required. First that:

(i) an assessment that someone has calmed down must be subjective to some degree and might well be mistaken . . .

(ii) the security guards had to make some allowance for the likelihood that they had made a wrong subjective assessment, particularly given the threats made by Smith, his intoxication, his stated intention to wait out the front for Karimi, his earlier assault on Karimi and his girlfriend’s keenness to re-enter the fray –

which is, after all, what happened –

(iii) the security personnel knew that it was not uncommon for men to “change within seconds” and “go from being calm and relaxed to violent and wanting to fight everyone” –

That is in the evidence –

(iv) security should have allowed for the possibility that Smith was still harbouring a grievance –

as, in fact, he was –

and might seek to re-enter the club premises –

and may I add my learned friend took your Honours to something on this and said there is evidence against this. That is a matter of hot dispute, paragraph (v) –

(v) importantly, Smith had only appeared to calm down after about 8 minutes of violent aggression at the front foyer –

We dispute that in reply, that is, what my learned friend said about that at paragraph 37 on page 95 –

(vi) the security guards could not determine with any degree of certainty that Smith had actually calmed down –

I have mentioned (vii) and –

(viii) allowance also had to be made for the possibility that Smith was trying to lull security into thinking he had calmed down so that he could either more easily re-enter and get Karimi (as he and his girlfriend had threatened to do) –

Now, we raise this also on pages 94 to 95 of the application book, particularly at paragraphs 34 and 33. At paragraph 34 we say that:

One cannot talk about a person “calming down” otherwise than by reference to that person’s earlier state. A person may be said to have “calmed down” if they are calmer than at an earlier time. Most boxers in their corner –

and this fellow was a boxer –

between rounds have “calmed down” compared with their state during a round. There was no evidence that the security guards believed that Smith had attained a state of meditative serenity.

What had happened is that he had calmed down, that is, he had stopped ranting, swearing, threatening Karimi and he had eventually put his shirt back on. Now, that is obviously a relevant matter, one of a constellation of factors that is relevant as to whether or not reasonable care required this man to be escorted to his car, but it was a very simple precaution, we submit, that could have been taken. It would have taken probably less than a minute and it was obvious that it was necessary that that occur in accordance with the requirements of reasonable care.

There were protocols about escorting people – I have mentioned that to your Honours before – and all manner of reasons why – again which I mentioned before – reasonable care required this. This was, on just taking the issue of escorting him from the back foyer to his car in the car park that was adjacent, that is a very, I submit, easy case on negligence. There is not any real rebuttal of the detailed reasons of the trial judge or any of the matters I referred to your Honours earlier otherwise than by jumping up and down about this notion of, well, they thought he had calmed down.

Well, we say, with all due respect, for reasons we have put in our submissions that that, although one small factor to be taken into account, is no more than that. Your Honours, I would have to go on to the other issues of breach to go on any longer. There is nothing more that I wish to say.

FRENCH CJ: Thank you, Mr Reynolds.

These applications concern whether and to what extent the proprietor of licensed premises and the provider of security services at the premises breached a duty of care to the patron of the proprietor, the applicant, in respect of the risk of violence inflicted by another intoxicated patron in the vicinity of the premises.

The applicant suffered significant brain damage as the result of an assault by another patron outside the premises from which both had been removed. No submissions were made at trial or in the Court of Appeal regarding the application of the Civil Liability Act 2002 (NSW). In overturning the judgment of the primary judge favourable to the applicant, the Court of Appeal applied settled principles with respect to the assessment of breach of duty and causation by the trial judge.

An appeal to this Court would turn upon the treatment by the Court of Appeal of issues of fact. We are not satisfied that if these facts were re-examined by this Court there is a sufficient prospect of final success to warrant a grant of special leave. Special leave will be refused with costs in both applications.

We will adjourn briefly to reconstitute.

AT 3.03 PM THE MATTER WAS CONCLUDED