IN THE SUPREME COURT OF NEW SOUTH WALES

NO 090 OF 2014
BETWEEN:
JAMES AND JENNA NOGOOD
APPELLANT

and
LOOSE OUTINGS LIMITED
RESPONDENT
AGREED FACTS
1. The Wahroonga Teen Friday (WTF) has for a long time been one of the
highlights of community. Most especially for the teenagers who use this particular
event as a convenient night to let their hair down from their often busy and overcommitted scholastic schedules. WTF happens once every term, often scheduled
on the last Friday of the exam period. It is a teenage event and open only to those
who are under the age of 18. It runs from 7:00pm to 11:00pm. It is strictly
alcohol-free and has always been this way.
2. WTF has a long history of fun and wholesome activities, and parents often
encourage their sons and daughters to go to WTF as recognition of all the hard
work they put in during the term.
3. WTF is run by Loose Outings Limited (LOL), a well established company who
runs a series of night clubs and party venues in and around the CBD and the north
metropolitan area. In fact, WTF is actually run in one of LOLs night clubs in
Wahroonga. On Friday and Saturday nights the venue serves as a nightclub, but in
an effort to appease the various complaints from the community (mostly relating
to noise), LOL offered to organise an event that benefited the community.
4. The event was often a big success, consistently drawing crowds of 100-200 teens.
The event offered a good DJ, lots of popular non-alcoholic beverages and pizza.
Parents often volunteered to serve the food and supervise the event.
5. Whilst LOL was happy to provide the event for the community, they charged a
small fee in order to break even for the night on the expenses which typically
included the DJ, food, drink and a bouncer at the door to refuse entry to anyone
over 18.
6. On the final Friday of Term 3, everyone was looking forward to WTF. At about
10:00pm on that particular Friday, a fight broke out on the dance floor. This
dispute involved some boys from two local schools who share a fierce rivalry and
from witness accounts, the fight revolved around a girl from another local school.
7. The fight escalated quickly with several boys from each school joining the melee.
One boy, Jarod Doobad, was punched in the face by another boy, David Nogood.

8. Jarod left the venue, and walked around the corner to where he and his friends had
been congregating before the start of the event. He picked up a metal pipe from
the ground and taking care to conceal the pipe, he re-entered the venue.
9. Upon entry, Jarod sought out David and proceeded to hit him across the face with
the pipe.
10. Jarod was quickly subdued by a year twelve boy who was trying to break up the
fight and the police were promptly called. Jarod was arrested and charged.
11. David sustained serious injuries to his face, fracturing several cheekbones and
suffering permanent damage to his left eye.
12. Not satisfied with the polices efforts against Jarod, Davids parents commenced
civil proceedings against LOL. Davids parents alleged that LOL had breached its
duty of care to provide a safe, responsible venue for the event and that they had
been negligent in their running and organization of the event by not providing
more security guards both at the door and inside the venue.
13. LOL argued that it could not have foreseen the violence that occurred, and even if
they had been able to foresee it, it could not be said that the placement of more
security guards (either at the door or inside the venue) would have been sufficient
to prevent the harm that had occurred.
14. After hearing the matter and being presented with all the evidence, Harsh J noted
the following:
Whilst the tragedy that has befallen Mr Nogood is deeply regrettable and undesirable,
the facts of the matter simply cannot lead to a finding in favour of the plaintiff.
Despite any personal views I may have on the matter, I feel constrained by the recent
decision of the High Court in Adeels Palace Pty Ltd v Moubarak.
On the facts at hand, it cannot be said that the risk was foreseeable... [A]nd in any
event, even if the risk had been foreseeable, the judgment in Adeel makes it quite clear
that placing more security guards would not have negated the harm suffered. As such,
even if LOL had been negligent, it cannot be said that negligence was a necessary
condition of the occurrence of the harm.
15. The Nogoods now appeal to the Supreme Court of New South Wales on the
following bases:
1. The risk of harm was foreseeable; and
2. The negligence was a necessary condition of the occurrence of the harm.

NOTE: Students are to restrict themselves to the materials provided and any issues of
quantum of damages will be addressed at a later date (i.e. no arguments to be made in
respect of damages).

RELEVANT MATERIALS
Legislation
Civil Liability Act 2002 (NSW)
Section 5Definitions
In this Part: "harm" means harm of any kind, including the following:
(a) personal injury or death,
(b) damage to property,
(c) economic loss.
"negligence" means failure to exercise reasonable care and skill.
"personal injury" includes:
(a) pre-natal injury, and
(b) impairment of a persons physical or mental condition, and
(c) disease.
Section 5B
General principles
(1) A person is not negligent in failing to take precautions against a risk of harm
unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to
have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the persons position would have
taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against
a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.
Section 5DGeneral principles
(1) 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
(factual causation), and (b) that it is appropriate for the scope of the negligent
persons liability to extend to the harm so caused (scope of liability). (2) In
determining in an exceptional case, in accordance with 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 is to consider

(amongst other relevant things) whether or not and why responsibility for the harm
should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the
person who suffered harm would have done if the negligent person had not been
negligent:
(a) the matter is to be determined subjectively in the light of all relevant
circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she
would have done is inadmissible except to the extent (if any) that the statement is
against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider
(amongst other relevant things) whether or not and why responsibility for the harm
should be imposed on the negligent party.

Case Materials
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420