Everett & Anor v Comojo (UK) Ltd (t/a the Metropolitan) & Ors [2011] EWCA Civ 13

Case No B3/2010/0552

[2011] EWCA Civ 13

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM CENTRAL LONDON COUNTY COURT

HIS HONOUR JUDGE WAKEFIELD

5SM03135

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 18/01/2011

Before

LORD JUSTICE RIX

LADY JUSTICE SMITH

LORD JUSTICE RICHARDS

Between

Everett & AnrAppellant

Comojo (UK) Ltd T/A The Metropolitan & OrsRespondent

(Transcript of the Handed Down Judgment of

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Simon Butler&Johnathan Payne (instructed by Stone Rowe Brewer LLP) for Appellant

Lord Faulks QC&Quintin Tudor-Evans (instructed by Barlow Lyde & Gilbert LLP) for Respondent

Hearing Hearing dates: 22 November 2010

Judgment

Introduction

[1]This is an appeal by Robert Charles Everett and Carl Derek Harrison against the order of HH Judge Wakefield dated 17 February 2010 dismissing their claims for damages for personal injury arising from an incident on 9 October 2002 at a nightclub owned and managed by Comojo (UK) Ltd, the respondent to this appeal.

[2]The appellants, who were guests at the nightclub, were injured in a knife attack perpetrated by another guest, a man named Cecil Croasdaile. He was convicted of wounding with intent to cause grievous bodily harm and was sentenced to life imprisonment; he has now been released. He was not sued. Instead, the appellants sued the company which manages the night club, alleging that it had failed to take appropriate steps to protect its guests. The appeal raises issues relating to the scope of the duty of the management of a night club in respect of the actions of third parties.

Factual background

[3]The Metropolitan Bar, known as the Met Bar, is part of the Metropolitan Hotel, 19, Old Park Lane, London W1. Use of the bar is restricted to members and their guests save that residents of the hotel are also permitted to use it. It is possible to enter the bar either from the hotel lobby or directly from the street. The bar is managed by Mr Stuart Rosenblatt. Security staff (door supervisors) are provided by Darkstorm Trading Ltd (trading as Panther Security). The premises are fitted with CCTV cameras.

[4]The appellants arrived at the bar at about 11pm on 8 November 2002; they were the guests of a member. A while later, one of the waitresses, Ms Tania Kotze, was kicked or tapped on the bottom by one of the group in which the appellants were standing. She suspected that it was Mr Harrison who did this although he has always denied it. She did not wish to make any complaint or fuss about this incident. However, the incident was witnessed by a club member named Sami Balubaid and it appears that he was aggrieved on Ms Kotze’s behalf. He told her, more than once, that those responsible would apologise to her before the end of the evening. Mr Balubaid was a regular guest at the bar, and was known to spend freely; he was a valued customer. He was usually accompanied by a bodyguard named Abu. At some stage, Ms Kotze spoke to Ms Ezelle Alblas (who was described as ‘the hostess’ and was senior to Ms Kotze) about this incident and Mr Balubaid’s response to it.

[5]Some time later, Mr Balubaid asked Ms Kotze to put the name of Cecil Croasdaile (whom he described as his driver) on the guest list. This was the procedure by which the door supervisor on duty would know that a person was to be admitted. Ms Kotze consulted Ms Alblas and Croasdaile’s name was put on the list. In due course he arrived. It appears that he entered the bar briefly, then left and re-entered shortly before 2am with Mr Balubaid. The two men sat at Mr Balubaid’s table with a blonde woman. Croasdaile ordered a shot of tequila, which Ms Kotze thought was surprising for a driver. Croasdaile was of unusual appearance. He was not particularly tall but had an enormous physique, like a bodybuilder. He was wearing a tight-fitting top and ‘combat’ trousers. Ms Alblas was later to describe his demeanour as assertive, bold and aggressive. However, another member of the bar staff said that Croasdaile appeared to be in a good humour and shared a joke with another guest while standing at the bar. Ms Kotze was concerned about Croasdaile as she regarded his appearance as ‘scary’. It crossed her mind to hope that Mr Balubaid was not going to send this man over to extract an apology for what had happened earlier. She feared that if that happened, there might be a confrontation. She was sufficiently concerned to go to speak to the bar manager, Mr Rosenblatt, who was in his office, adjacent to the bar itself. Ms Alblas was also in the office. Ms Kotze explained her concerns to Mr Rosenblatt and Ms Alblas. She estimated that she was in the office for only a few minutes. She was just returning to the bar with Ms Alblas when she heard the sounds of breaking glass and other disruption.

[6]Meanwhile, in the bar, events had taken a very nasty turn. The two appellants decided to leave and Mr Harrison went to collect their coats. Mr Everett was beckoned to Mr Balubaid’s table at which he and Croasdaile were standing. Mr Balubaid asked for an apology at which Mr Everett told him to ‘piss off’. Mr Everett then tried to walk away but was punched in the face by Croasdaile. There was a scuffle as Mr Everett tried to defend himself. Croasdaile then produced a knife and stabbed Mr Everett in the neck. He then pursued Mr Harrison, who had run down the stairs leading to the toilets and fire exit, and attacked him. Mr Everett followed down the stairs and Croasdaile stabbed him three times in the abdomen. Mr Harrison escaped through a fire exit; he had been stabbed a total of five times. Both men had received serious injuries from which, it appears, they have made satisfactory recoveries.

The action for damages

[7]The action for damages was begun on 4 November 2005. It named as defendants the respondent (Comojo), Mr Balubaid and Darkstorm Trading Ltd, the security company. In due course, Darkstorm obtained summary judgment and were dismissed from the claim. Judgment in default of defence was obtained against Mr Balubaid but he has not been seen or heard of since these events and any judgment is unlikely to be satisfied. Accordingly, the action went on against Comojo alone.

[8]In the action, the issue arose as to whether Comojo owed any duty of care towards the appellants in respect of the actions of another guest. Comojo contended that it owed no such duty. The appellants contended that Comojo owed its guests a duty at common law to take reasonable steps to protect them from dangers from third parties which it foresaw or ought reasonably to have foreseen. The judge accepted the claimants’ submissions on this point for reasons which I will examine in more detail later in this judgment.

[9]Although the particulars of claim ranged widely, by the end of the hearing, only two allegations of negligence or breach of duty were being pursued. These were, first, that Comojo had been negligent in failing to instruct the doormen to search guests. The judge rejected that allegation and there is no appeal from that holding. I say no more about it. The second allegation, the only one with which this appeal is concerned, was that Ms Kotze (for whom the defendant would be vicariously liable) had been negligent in reporting her concerns about Croasdaile to Mr Rosenblatt, the bar manager, rather than reporting directly to one of the door supervisors. The argument was that, if she had spoken directly to a door supervisor, he would have come into the bar immediately and would probably have prevented the violent incident or would at least have been on hand to control it if it had started. Instead of which, it was said, Ms Kotze had wasted valuable time by going to speak to Mr Rosenblatt.

[10]Comojo’s response was that, if any duty were owed, Ms Kotze had not been negligent. She could not have anticipated that violence was imminent. It was reasonable for her to speak to Mr Rosenblatt first. In any event, the incident happened so quickly that, even if she had spoken directly to the door supervisor, the incident would probably still have occurred.

[11]The evidence of what had happened was not disputed. Much of it was captured on CCTV. From the stills, it was established that Croasdaile and Mr Balubaid came in together and sat down at 1.57am. The violence broke out at about 2.10am. What could not be ascertained from the stills were the movements of Ms Kotze, in particular the time at which she had left the bar and gone to Mr Rosenblatt’s office. Although she had provided two statements for the purpose of the criminal prosecution, she had not provided a statement for the purpose of the civil action. Apparently she had returned to live in South Africa. Neither Mr Balubaid nor Croasdaile provided any evidence. Mr Rosenblatt and Ms Alblas provided statements but were not called for cross- examination. They had not witnessed the outbreak of violence.

[12]As to the facts, besides referring to the matters I have already outlined, the judge found that there was no history of violence in the bar, and none from Mr Balubaid or his employees. Croasdaile had a knife on him when he entered the premises but this was concealed. Croasdaile did not threaten anyone prior to the sudden outbreak of violence.

[13]As to the legal issue, the judge rejected Comojo’s submission that it owed no duty of care to the appellants. The judge said that Comojo may owe a duty to protect their guests from the actions of a third party. He based that conclusion on his view that there may be such a degree of proximity between the parties that a legal duty would arise. In particular, he quoted and relied upon a decision of the Federal Court of Australia, Chordas v Bryant [1988] 91 Australian Law Reports 149. That case concerned the duty of hotel managers to protect a patron from the foreseeable risk of injury arising from the actions of another patron. The Federal Court had cited with approval the words of the trial judge:

“A prerequisite of any such duty is that there be a necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would in the circumstances do by way of response to the foreseeable risk.”

The judge declared that that statement represented the law in this jurisdiction.

[14]He then considered whether any duty arose in the particular circumstances of this case. He framed his consideration in terms of the existence of a duty rather than whether there had been any breach of the duty as it had been framed in Chordas. He asked himself whether there was a duty on Comojo to take steps to avert an incident in the bar. He said that such a duty would only arise if it was reasonably foreseeable that injury was going to be caused to patrons that evening. He reminded himself of the words of Lord Reid in Bolton v Stone

[1951] AC 850

where at page 867, he said:

“In my judgment, the test to be applied here is whether the risk of damage to a person on the road is so small that a reasonable man in the position of the appellants considering the matter from the point of view of safety would have thought it right to refrain from taking steps to prevent the danger”

[15]The judge then considered the evidence of two security experts. He quoted a brief passage from the joint expert statement, to the effect that Ms Kotze ‘would have been better advised’ to take her concerns directly to the security staff rather than to the manager.

[16]The judge also considered documents which set out the duties of door supervisors working at the Met Bar, which included the resolution of problems without the use of force, the avoidance of problems due to drunkenness and disorder and the removal of any drunken or disruptive person with the minimum of force. The judge examined Comojo’s risk assessment form. This recognised various levels of trouble which might arise from guests. These varied from verbal abuse, through threats of or actual violence between guests or towards members of staff to the threat of, or attempted or actual use of offensive weapons. The risk assessment referred to the role of the door supervisors in the control and protection of the bar. They were said to be trained to deal with such problems with the minimum of fuss. The assessment stated that no other member of staff should get physically involved in an incident. A member of staff should contact a door supervisor if a problem arose. The judge said that these were guidelines only and were not ‘determinative’.

[17]The judge then considered whether a duty of care arose in the circumstances and, if so, whether there had been a failure to exercise reasonable care. He concluded that there had been no duty of care. That was because, at the time when Ms Kotze left the bar to speak to Mr Rosenblatt, there was not a sufficiently great risk of injury; she was not under a duty to do anything about Croasdaile at that stage. If she had done nothing, she could not have been criticised. All she had was a suspicion that that there might be some sort of confrontation. But it was not known that Croasdaile had a weapon and there had been no history of Mr Balubaid or his associates being violent. The judge observed that it would have been better if Ms Kotze had gone to see a door supervisor rather than Mr Rosenblatt but that was not to say that she had been under any duty to do either.

[18]That was sufficient to dispose of the claim in favour of Comojo. Later, after the judgment was finished, the judge was asked what conclusion he would have reached on the issue of causation, if he had found that Ms Kotze had been under a duty to alert one of the door supervisors. He said that liability would have been established. By that he must have meant that, if Ms Kotze had contacted a door supervisor when she went to see Mr Rosenblatt, the incident would probably have been avoided.

The appeal to this court

[19]Neither party was satisfied with this judgment. The appellants were dissatisfied because they thought that, having recognised that a duty of care could exist in circumstances such as these and having defined the duty by reference to Chordas, the judge should have concluded that there had been a breach.

[20]By its respondent’s notice, the respondent contended that the judge had been wrong to adopt Chordas as a correct statement of the law of England and Wales. In its respondent’s notice, it contended that there should be no duty on the managers of a bar to protect guests from violence by other guests; if there was any duty at all, it should be drawn very restrictively.

[21]At the hearing of this appeal, Lord Faulks QC who appeared for the respondent, did not completely abandon the contention that there could be no duty at all on the management of a night club in respect of the actions of third parties. I think, however, that he recognised that, on the authorities, that was an extreme and difficult position to take. He submitted that the courts have always been slow to impose on a defendant liability for the deliberate acts of third parties and that any such duty should be narrowly drawn. He said that the issue was of some importance for the hotel industry, which needed to know where it stood.

[22]As for the application to the facts, the appellants submitted that, having correctly adopted the test set out in Chordas, the judge should have held that Ms Kotze had been in breach of duty in failing to tell a door supervisor of her concerns about Croasdaile. The judge had been right to say that such a breach would have been causative of the injury. The respondent submitted that, if there was a duty, Ms Kotze did not breach it. Further, even if Ms Kotze had been in breach of duty, that breach would not have been causative. The judge’s holding on causation was not dealt with in the judgment; he merely stated his conclusion afterwards without giving reasons. A reasoned analysis would have resulted in a finding that, even if Ms Kotze had gone directly to a door supervisor, the incident would probably not have been avoided; the incident had happened too quickly.

Discussion

[23]I will deal first with the question of duty of care. I have already noted that, after the judge had concluded that there may be a duty of care in these kind of circumstances, he went on to consider whether the duty arose in the particular circumstances pertaining at the time. I do not criticise the judge for approaching the question of duty and breach in this way. The separate facets of the question of liability can and often do overlap. Sometimes, if a duty situation has been recognised and where the standard of care (or scope of the duty) has been established by authority, the best approach for the judge is to move directly to consider whether there has been a breach of that duty. However, there are some situations where not only is the existence of any duty at all disputed but the standard of care or extent of the duty has not been established by authority. Indeed, there are some circumstances in which it is well nigh impossible to devise a concise way of expressing the extent of the duty or the standard of care. In such cases, the only approach open to the judge is to decide whether, on the particular facts of the case, there was a duty on the defendant to take steps to avoid the particular hazard in question. That said, I think that, if the judge was satisfied that Chordas was a correct statement of the law in relation to the existence and scope of the duty of care of the management of a bar or hotel to protect guests from injury caused by a fellow guest, he could have moved straight to a consideration of whether on the facts there was a breach of that duty. However, he appears to have thought it necessary to define the extent of the duty more closely. In my view, he is not to be criticised for that approach.

[24]Lord Faulks submitted that, nowadays, the starting point for the existence of a duty of care should be the threefold test expounded in Caparo Industries plc v Dickman

[1990] 2 AC 605

. I do not think that the appellants disagreed with that submission and in any event I would accept it. The threefold test has been affirmed by the House of Lords in Van Colle and Another v The Chief Constable of the Hertfordshire Police

[2009] 1 AC 225

. In that case, Lord Bingham of Cornhill said that Dorset Yacht Co Ltd v Home Office

[1970] AC 1004

was the classic example of the indirect liability of a defendant for failing to prevent the claimant being injured by a third party. There, the Home Office was held liable for damage caused by a group of Borstal boys who escaped from their supervisors and took and damaged the claimant’s yacht. It was held that the supervisors owed the claimant a duty to take such care as was reasonable in all the circumstances with a view to preventing the boys under their control from damaging the claimant’s property if that was an event of which there was a manifest risk if they neglected that duty. The House also said that public policy did not require that there should be immunity from such an action.

[25]In Van Colle, Lord Bingham went on to discuss the various bases on which such a liability had been founded. In some such cases it had been found to depend on an assumption of responsibility by the defendant towards the claimant and in some, on the finding of a special relationship between the defendant and the third party by virtue of which the defendant was responsible for controlling the third party. He continued:

“Currently, however, the most favoured test of liability is the three-fold test laid down by the House in Caparo Industries plc v Dickman [1990] 2 AC 605, by which it must be shown that harm to B (the claimant) was a reasonably foreseeable consequence of what A (the defendant) did or failed to do, that the relationship of A and B was one of sufficient proximity and that in all the circumstances it is fair, just and reasonable to impose a duty of care on A towards B.”

[26]Caparo was concerned with the question whether a duty relationship existed between the particular parties and what was ultimately in question was the actions of the defendant; that case was not concerned with the question of whether a defendant could be liable for the acts of a third party. However, it seems to me that the threefold test is the correct starting point not only for the existence of the duty but also for its scope or extent. Not only must that test be satisfied before any duty is capable of existing but once the possibility of a duty has been established, the extent of the duty must be delineated by what is fair, just and reasonable. In many cases - for example in Dorset Yacht - the extent of the duty was defined at the same time as it was held to exist. In that case, the extent of the duty was not the ordinary common law duty to take such care as is reasonable in all the circumstances to avoid such risks as are or ought reasonably to be foreseen. The court defined the duty more narrowly; it was to take such care as was reasonable in the circumstances to prevent the boys from damaging the claimant’s property if that was a happening of which there was a manifest risk if that duty was neglected. In other words, a high degree of foreseeability was required.

[27]The threefold test is something of an advance on that which was available to judges in earlier years. In Smith and others v Littlewoods Organisation Ltd

[1987] 1 AC 241

the court was concerned with the existence and scope of the duty of a landowner towards neighbouring landowners in respect of the actions of third party trespassers. In that case, the defendants were owners and occupiers of a disused cinema. From time to time, young people broke in and vandalised the interior; these incidents had included the setting of fires. The defendants had been unaware of these incidents. On one occasion, the vandals set a fire which spread and damaged the claimants’ adjacent premises. The head note to the report of the decision in the House of Lords says merely that whether an occupier of property owed a duty of care to adjacent occupiers in respect of acts of trespass depended on all the circumstances of the case and on socially accepted standards of behaviour. Cases in which such a duty would exist were likely to be rare. That general statement is all that can be derived as to the law although there is much useful discussion of the problem of liability for the acts of third parties. Lord Faulks sought to rely on this in the present appeal.

[28]Lord Goff of Chieveley began his speech by emphasising that there is no general duty to prevent others from suffering loss or damage caused by the wrongdoing of third parties. That was because there was in general no liability for pure omissions. He noted that, in some jurisdictions outside the common law orbit, such a duty did sometimes exist, although in restricted terms. At page 271H, he said that, any affirmative duty to prevent deliberate wrongdoing by third parties, if recognised in English law, is likely to be strictly limited. And at page 272 C he said:

“But one thing is clear, and that is that liability in negligence cannot be founded simply upon foreseeability that the pursuer will suffer loss or damage by reason of such wrongdoing. There is no such general principle. We have therefore to identify the circumstances in which such a liability may be imposed. ”

[29]Lord Goff then mentioned a number of examples of the kind of circumstances in which defendants had been held liable for the acts of third parties. These were cases where there had been an assumption of responsibility towards the claimant or where a special relationship existed between the parties. He mentioned the type of case in which the defendant creates a source of danger which renders it reasonably foreseeable that a third party may so act as to spark off the danger and cause damage. Finally, he mentioned the type of case in which the defendant is aware that third parties have intruded onto his property and have behaved in such a way as to create a risk of damage to neighbouring property; in such circumstances, he then might have to take reasonable steps to prevent such damage. What was reasonable would depend on the circumstances. After consideration of authority and after applying his conclusions to the facts of the instant case, Lord Goff was of the view that there was no liability. He did not attempt any general statement of the criteria which would have to be satisfied before liability for the acts of third parties would arise. He appears to have agreed with Lord Griffiths, who said, at page 251 E/F that there was no touchstone which could applied as a universal test. Mere foreseeability of damage was not enough. The scope of the duty would have to be left to the good sense of the judges. As I have observed, this case preceded Caparo and it may be that that case, with its threefold test provides some guide to the touchstone which eluded Lord Griffiths. If not a touchstone, the threefold test provides a process by which judges can determine whether a duty should exist and if so to determine its scope.

[30]The judge in the present case did not go through the process of applying the threefold test; he was attracted to the exposition in Chordas. I shall undertake that process, always bearing in mind that the three elements of the test are not completely separate considerations; they overlap to some extent.

[31]Proximity of the relationship. I consider that the relationship between the management of a night club and its guests is of sufficient proximity to justify the existence of a duty of care. The management is in control of the premises. It can regulate who enters, who is refused entry and who is to be removed after entry. The guest comes to the night club to relax and enjoy himself and for that prospect relies on the competence and prudence of its management. He expects and is entitled to expect that there will be no violence and that he will not be unsafe. Further, the management of the night club is in business and wants the guest to come to spend his money; there is an economic relationship between the two. In my judgment, those factors demonstrate sufficient proximity.

[32]Foreseeability of injury. It is a well-known fact that the consumption of alcohol can lead to the loss of control and violence, both verbal and physical. Lord Faulks acknowledged as much. In the present case, Comojo’s own risk assessment recognises the existence of those risks. It must be foreseeable to any licensed hotelier that there is some risk that one guest might assault another. The risk may be low in respectable members-only establishments and much higher in a night club open to the public. The assessment of the degree of risk, which will dictate what precautions have to be taken, will vary. There cannot be any rule of thumb to apply to all night clubs. But it does not seem to me that, given its own risk assessment, Comojo could seriously argue that the risk of such assault was so low that it could safely be ignored.

[33]Fair, just and reasonable. In my view, it is fair, just and reasonable to impose a duty of care on the management of a night club in respect of injuries caused by a third party, provided that the scope of the duty is appropriately set. The factors already mentioned are relevant – control, the economic relationship and the (highly variable but existing) foreseeability of violence. But also in this context, I regard it as relevant that the relationship between the parties already carries with it an established duty, under the Occupier’s Liability Act 1957, in relation to the condition of the premises. That is the common duty of care and it requires the occupier to take such care, as in all the circumstances of the case is reasonable, to see that the visitor will be reasonably safe in using the premises for the purposes for which is he invited or permitted to be there. It would be surprising if management could be liable to a guest who tripped over a worn carpet and yet escape liability for injuries inflicted by a fellow guest who was a foreseeable danger - for example in that he had previously been excluded on account of his violent behaviour and who on this occasion had been allowed in carrying an offensive weapon. It is not without interest that the Canadian Occupiers Liability Act 1979, which imposes a duty of care on occupiers in very similar terms to our Act so far as the condition of the premises is concerned, imposes the same duty of care in relation to the conduct of third parties on the premises.

[34]Accordingly, I would conclude that there is a duty on the management of a night club in respect of the actions of third parties on the premises but I stress that the standard of care imposed or the scope of the duty must also be fair, just and reasonable.

[35]Lord Faulks urged the court to say that any such duty (including the standard of care) should be narrowly drawn. I think that he had in mind the kind of definition which the court applied in Dorset Yacht, where a high degree of foreseeability of the kind of harm in question was to be required before there could be liability. I am not prepared to say that, as between the managers of a nightclub and guests, there should be a higher degree of foreseeability than is required under the common duty of care in the Occupiers’ Liability Act. The degree of proximity (including the economic relationship) between the two is so close that I do not think any special rule of foreseeability is required in the interests of fairness, justice and reasonableness. I think that that was the kind of duty which the Australian judge had in mind in the passage from Chordas quoted above. That is also the clear intention of the Canadian Occupiers Liability Act. It follows that I do not think that the judge misdirected himself when he adopted Chordas as the basis of the duty.

[36]The common duty of care is an extremely flexible concept, adaptable to the very wide range of circumstances to which it has to be applied. It can be applied to the static condition of the premises and to activities on the premises. It can give rise to vicarious liability for the actions of an employee of the occupier who, for example, might have created a temporary tripping or slipping hazard. I think that it is appropriate (fair, just and reasonable) that it should govern the relationship between the managers of an hotel or night club and their guests in relation to the actions of third parties on the premises. I do not think it possible to define the circumstances in which there will be liability. Circumstances will vary so widely. However, I think it will be a rare night club that does not need some security arrangements which can be activated as and when the need arises. What they need to be will vary. One can think of obvious examples where liability will attach. In a night club where experience has shown that entrants quite often try to bring in offensive weapons, it may be necessary to arrange for everyone to be searched on entry. In a night club where outbreaks of violence are not uncommon, liability might well attach if a guest is injured in an outbreak of violence among guests and there is no one on hand to control the outbreak. It may be necessary for the management of some establishments to arrange for security personnel to be present at all times within areas where people congregate. On the other hand, in a respectable members-only club, where violence is virtually unheard of, no such arrangements would be necessary. The duty on management may be no higher than that staff be trained to look out for any sign of trouble and to alert security staff.

[37]In my judgment, the judge was also right in his conclusion that, in all the circumstances, Ms Kotze had not been in breach of duty. She had realised that there was a possibility of a confrontation between Croasdaile and one or more of the members of the appellants’ group. Why she acted as she did, in going to speak to Mr Rosenblatt rather than summoning a door supervisor is not known; she was not available to give evidence. The judge could only consider whether a reasonable waitress in her position would have gone to fetch a door supervisor. In my view, the judge’s assessment of the reasonableness of her action is unassailable. There was no reason to think that a confrontation was imminent. The incident to which Mr Balubaid had taken exception had occurred a considerable time earlier. Certainly, Croasdaile’s appearance gave rise to some concern but he was apparently Mr Balubaid’s employee and Mr Balubaid was a valued customer with no previous history of causing trouble, either himself or through his employees. I would endorse the judge’s conclusion that Ms Kotze could not have been criticised even if she had done nothing. As it was, she went to speak to her manager. That seems to me to have been a very sensible thing for her to do. A waitress in her position would not have wished, on her own initiative, to take a step which might have caused offence to Mr Balubaid and embarrassment to the club, by asking a door supervisor to intervene in some way. Telling Mr Rosenblatt about the situation and letting him decide what to do seems sensible. There was no apparent urgency; it was not as if a confrontation had begun and the risk of violence was imminent.

[38]For those reasons I would dismiss this appeal.

[39]There is no need for me to decide whether the judge’s conclusion on causation was wrong. I accept that it was not a reasoned conclusion. It had not been necessary for the judge to decide the point; he gave a rapid response when asked to do so. I think his reaction must have been largely one of impression. I do not think it necessary or appropriate for me to attempt to examine the evidence in detail to see whether that impression was justified.

[40]I agree.

[41]I also agree.