In Brief
- This case considered the duty of a licensed club to protect its patrons from the tortious or criminal conduct of fellow patrons and what is reasonably required to discharge that duty.
Background Circumstances
- The plaintiff, Tarique Karimi, suffered serious injury including brain damage when he was king hit by an intoxicated patron of the Rooty Hill RSL Club ("the Club"), Michael Smith.
- Earlier that evening the plaintiff and Mr Smith had been engaged in an altercation. Both were evicted from the club by security guards employed by Allied Security Group Ltd ("Allied").
- Allied staff managed the removal of both groups. Mr Smith and his girlfriend left by the front eastern entrance. At the time of the departure Mr Smith and Ms Cameron told security guards that they intended to go home. They were observed by a security guard driving out of the front car-park. This information was then conveyed to the security staff at the western entrance who then invited the plaintiff and his companions to leave. The plaintiff and his group left by the rear western entrance.
- Ms Cameron then drove Mr Smith into the western car-park. As the plaintiff walked through the car-park Mr Smith ran up to him and king hit him with sufficient force to knock him backwards to the ground.
Supreme Court Proceedings
- The plaintiff brought proceedings by his tutor in negligence against the Club and Allied, and in trespass to the person against Mr Smith.
- The Club cross-claimed against Allied and Mr Smith. Mr Smith did not enter an appearance nor did he take any part in the primary proceedings.
- At the trial it was not in issue that the Club was subject to a duty to exercise reasonable care arising out of the intoxicated or dangerous condition of its patrons, and that duty extended to the protection of a patron while he was on or departing from the premises.
- Similarly, Allied accepted that it owed a duty by reason of its provision of security services at the Club to exercise reasonable care to avoid one patron injuring another in circumstances where it knew or had constructive knowledge that the patron was a potential source of danger.
- His Honour held that the Club and Allied could have discharged the duty they owed to the plaintiff by taking the following three measures:
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- Monitoring the entrances to the western car park to restrain Mr Smith from re-entering;
- Staggering the interval between the plaintiff's departure and Mr Smith's departure by a longer period; and
- Providing a security guard to escort the plaintiff to his car.
- His Honour found that Allied security guards and the Club's managers who attended the incident inside the Club ought to have known that Mr Smith was potentially dangerous. His Honour was critical of the Club's policy which required that all parties to a dispute be evicted without any assessment of the identity of the aggressor. It was found that employees of the Club and Allied, both of whom were involved in the decision to require the plaintiff to leave the Club, failed to heed information that identified Mr Smith as the aggressor.
- It was held that it was foreseeable that Mr Smith would seek to re-enter the club premises through the western car park and assault the plaintiff.
- No evidence was tendered as to the contractual relationship that existed between Allied and the Club. Although it was not specifically pleaded, his Honour could find no evidence that established that the Club had delegated its duty of care to Allied. He found that both owed a duty of care to the plaintiff and both were in breach of their respective duties.
- His Honour awarded judgment to the Club on its cross-claim against Allied for contribution to the extent of half of the damages payable by it to the plaintiff.
On Appeal
- Bell JA delivered the unanimous judgment.
- The Club submitted that the primary judge had wrongly found that its managers were present at the scene of the initial accident, and thus it did not have actual or constructive knowledge of Mr Smith's aggressive character.
- Allied submitted that the primary judge failed to address the evidence that at the time its staff saw Mr Smith leave the premises they were satisfied that he had regained control and he no longer posed a threat to the plaintiff or other Club patrons. Accordingly, Allied submitted that it did not have actual or constructive knowledge that Mr Smith still posed a threat to the plaintiff.
- Bell JA held that it was very significant that no challenge was made to the security guards assessment of Mr Smith in this regard. The assessment made by Allied of Mr Smith's condition was critical to the determination of liability because it prescribed the measures or response that was reasonably required to discharge the duty.
- The fact that Mr Baryalei, the plaintiff's friend, who was present and involved in the initial attack was not concerned about a reprisal attack, was relevant to the assessment of whether Mr Smith's aggressive conduct was such that reasonably called for any greater response than was made by the Club and Allied.
- The Court of Appeal held that it was only with the benefit of hindsight and by reasoning backwards that it could be held that the club and Allied were negligent in their failure to adopt the three measures identified by the primary judge. The Court noted that Mr Smith appeared to have regained control and was planning to go home with his girlfriend. The plaintiff was not invited to leave until the security staff confirmed that Mr Smith had left the club's premises. Although the initial incident involved an unprovoked assault on the plaintiff, the Court held it did not call for preventative measures other than those which the club and Allied took in order to reasonably protect the plaintiff from the risk of injury at the hands of Mr Smith.
- The Club and Allied also challenged the primary judge's findings on causation. Bell JA held that the provision of a security guard to escort the plaintiff to his car is likely to have averted the attack. On appeal it was held that Mr Smith's attack was carried out without any regard to the fact that he would probably be apprehended. In these circumstances the Court could not find that it was probable that the plaintiff's assault would not have occurred if the three measures that the trial judge proposed were employed.
- The Club also submitted that they had delegated their duty to the plaintiff by retaining a competent security company for the provision of its security services. The Court held that even though Allied staff were permitted to use their own discretion in urgent situations without recourse to their duty managers this did not demonstrate that the club had delegated responsibility for the security of its patrons to Allied. Bell JA held that it was difficult to see how the issue could have been determined in the absence of any evidence of the club's contractual arrangements with Allied.
Implications
- It is now well established that the imposition of a duty on the part of the occupiers of licensed premises to protect their patrons from the criminal or tortious conduct of third parties depends upon them having actual or constructive knowledge of the aggressive character of the person when intoxicated. The duty does not arise merely from the fact of intoxication. (Wagstaff v Haslam [2007] NSWCA 28).
- Confirming Vairy v Wyong Shire Council [2005] HCA 62 and Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42, the Court held that an inquiry into breach must be made by asking, prospectively, what the exercise of reasonable care required in response to a foreseeable risk of injury, not by retrospectively reasoning what a defendant could have done to prevent the injury.
- This case highlights the importance of having properly qualified experts or an industry standard establishing what is reasonable conduct in response to situations of the kind which the plaintiff was involved in.
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