Australia: Failure to eject unruly hotel patron not a breach of duty of care

In brief - Respondent fails to establish liability or contributory negligence

In Cregan Hotel Management Pty Ltd & Anor v Hadaway [2011] NSWCA 338, the NSW Court of Appeal found that failure to eject an unruly patron who later assaulted another patron away from the hotel did not amount to a breach of duty. The decision highlights the need to examine factual circumstances.

Two altercations at hotel premises

On 17 September 2004 Mr Hadaway, the respondent, was drinking at the Hoey Moey Hotel in Coffs Harbour. Mr Robinson was also at the hotel. Two altercations occurred on the hotel premises between Mr Robinson and Mr Hadaway, one at 5pm and another at 5.30pm.

On both occasions they were separated and moved by hotel staff to different areas of the hotel. Mr Hadaway left the hotel a number of hours after the 5.30pm altercation. He was subsequently assaulted by Mr Robinson about two hundred metres from the hotel premises and suffered serious injury.

District Court proceedings against assailant, hotel, licensee and security company

Mr Hadaway brought proceedings in the District Court against Mr Robinson, Cregan Hotel Management Pty Ltd, the licensee/manager of the hotel and the security company which supplied guards to the hotel. The claim against the security company was discontinued. The trial judge, Levy DCJ, found Mr Robinson liable for assault and battery, with damages to Mr Hadaway for $1,161,368.

The Cregan Hotel and the licensee/manager (together the appellants) were also found to be liable to Mr Hadaway in negligence, with damages assessed at $922,394. The appellants made a cross-claim against Mr Robinson, for which Levy DCJ found they were entitled to a 70% contribution by Mr Robinson.

Court of Appeal finds breach of duty of care not established 

The appellants appealed as to liability, contributory negligence and damages. Giles and Basten JJA found that breach of duty of care was not established and the judgment of the primary judge should be set aside. Allsop P concurred with their decision.

Giles JA found the primary judge incorrectly concluded that Mr Hadaway was ejected from the hotel and this factual finding was central to the trial judge's reasoning as to breach of duty of care [43]. Giles JA found that Mr Hadaway had left the hotel voluntarily some hours after the altercations had taken place.

Reasonable to separate hotel patrons after altercation 

Giles JA noted that the expert evidence led by the respondent regarding industry practice was only a guide in relation to protecting the safety of patrons of a hotel. He observed that reasonableness depends on, "the appropriate control of human responses of two men known to the hotel staff and security guards....(and) that does not attract a stereotyped response to the risk of injury"[70].

Giles JA found that it was a reasonable response to separate Mr Robinson and Mr Hadaway within the hotel after the first altercation at 5pm. Giles JA remarked that the ineffective separation which occurred at 5pm cast doubt on the efficacy of a second separation after another altercation at 5.30pm, but it did not exclude the possibility that such a reinforced separation would be effective [71].

His Honour was not satisfied that the second separation and continued presence of Mr Robinson and Mr Hadaway in the hotel was unreasonable. Further, he noted that the second separation was in fact a success, as there were no further altercations until both individuals had left the premises.

Giles JA concluded that it had not been established that the appellants were in breach of the duty of care owed to Mr Hadaway by not ejecting Mr Robinson, or both Mr Robinson and Mr Hadaway, from the hotel premises after the second altercation at 5.30pm.

No continuing duty to monitor behaviour of patrons 

Basten JA agreed with Giles JA that the separation of Mr Hadaway and Mr Robinson did not constitute a breach of the hotel's duty of care. Nor did it give rise to a continuing duty to monitor the behaviour of Mr Hadaway and Mr Robinson whilst they were in the hotel and also at the time of their departure.

Basten JA concluded that without a continuing duty and subsequent breach, it is unlikely that Mr Hadaway could establish that the failure to eject Mr Robinson at an earlier time was the cause of the later assault.

Basten JA held that in order for Mr Hadaway to succeed, he would have to establish that responsible staff in the hotel knew or ought to have known that at the time Mr Hadaway left the hotel premises, there was a real risk of him being pursued and attacked by Mr Robinson.

Secondly, they would have had to establish that Mr Hadaway left the premises when he did and thirdly, that Mr Robinson knew, or was in a position to know, when Mr Hadaway left the hotel premises [84].

His Honour observed that if those elements had been established by Mr Hadaway, the question would then arise as to what steps could have been reasonably taken to protect him after he left the premises, or in preventing Mr Robinson from leaving the hotel.

Basten JA distinguished the current proceedings from prior Court of Appeal decisions in Karimi and Portelli, first by remarking that Mr Hadaway had not been ejected from the premises and secondly, that his departure had not been supervised [86].

Liability hinges on specific circumstances, not industry standards 

The court's decision highlights that the circumstances of the patrons and the judgment of the staff involved in managing an altercation is critical to a determination on liability. Giles JA was careful to note that whether such judgment was reasonable or not depends on the circumstances of a situation, rather than an industry standard.

For more information about insurance and reinsurance, please see the website of CBP Lawyers or contact David Miller at or Goce Mitrevski at or Amy Malaquin at

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.