Australia: Do hotels have an obligation to eject rowdy patrons following an altercation?

Curwoods Case Note
Last Updated: 21 November 2011
Article by Samantha Hubbard

Judgment date: 8 November 2011

Cregan Hotel Management Pty Limited and Anor v Hadaway [2011] NSWCA338

NSW Court of Appeal1

In Brief

  • A hotel owes to patrons a duty to take reasonable care to prevent injury from the violent, quarrelsome or disorderly conduct of other patrons. In determining whether this duty has been breached, the Court is to consider the general principles set out in s 5B of the Civil Liability Act 2002 (NSW) (CLA).
  • In cases of assault occurring outside a hotel, to establish negligence it is necessary that the victim prove that responsible staff in the hotel knew, or ought to have known, at the time the victim left that there was a real risk of harm of them being pursued and attacked by another patron. It is also necessary that the victim establish when they left the premises and that the other patron knew, or was in a position to know, that they had left the hotel.
  • The NSW Court of Appeal will review decisions if it considers the finding of facts by the primary judge to be flawed and the analysis of the evidence unsound.


On 17 September 2004, Mr Hadaway (plaintiff) attended the Park Beach Hoey Moey Hotel in Coffs Harbour (Hotel) drinking from the late afternoon into the evening. Mr Robinson was also at the Hotel. Both the plaintiff and Mr Robinson were locals known to Hotel staff and security. Prior to 2002, Mr Robinson had worked on occasion at the Hotel as a security guard. The plaintiff and Mr Robinson had known each other for some years. They had lived together but had a falling out which left "a considerable degree of deep-seated ill-will" between them. In particular, the plaintiff alleged Mr Robinson had not paid his share of the rent and that he had taken some of the plaintiff's household goods when he moved out.

Regarding the events which took place at the Hotel on the date of injury, there was a significant factual conflict and divergence of evidence before the primary judge. Generally, it was accepted that at about 5.00 pm, the plaintiff and Mr Robinson were involved in a verbal altercation at the Hotel's bar. On some evidence there was also a degree of physical abuse when Mr Robinson allegedly slapped the plaintiff on the face and tried to drag him from his seat towards the outside of the Hotel to continue the fight. Hotel staff intervened, separated the plaintiff and Mr Robinson and insisted they remain in separate areas of the Hotel.

It was also accepted that at about 5.30 pm, there was a further confrontation when the plaintiff entered the main bar where Mr Robinson had been sequestered. The altercation involved loud verbal exchanges and Mr Robinson again invited the plaintiff to exit the Hotel to continue the fight. Hotel staff and security intervened and separated the pair for a second time.

After the second altercation, it was generally accepted that both the plaintiff and Mr Robinson continued drinking but were not involved in any further incidents. At approximately 9.30 pm, the plaintiff left the Hotel intending to walk to a nearby pizza shop. The plaintiff was approximately 200 m away from the Hotel when Mr Robinson and others ran towards him. Mr Robinson then assaulted the plaintiff resulting in significant injury, including a broken leg.

District Court

The trial judge in the District Court of New South Wales, Levy DCJ, found that Mr Robinson and the Hotel were liable to the plaintiff for the assault and battery and assessed damages at $1,161,368. He found the plaintiff had not been contributorily negligent and that the Hotel was entitled to a 70% contribution from Mr Robinson. This decision was based on factual findings regarding the assault which the Court of Appeal later found were at times unclear, inaccurate and flawed in important respects.

Firstly, the trial judge found that the plaintiff had been ejected from the Hotel at 9.30 pm, rather than leaving the Hotel voluntarily. In coming to this conclusion, the trial judge accepted the evidence of the Hotel's security guard but rejected the contrary evidence of a number of witnesses based on credit issues.

Secondly, the trial judge found that Mr Robinson observed the plaintiff leaving the Hotel and decided to follow him. However, the trial judge made no finding as to how Mr Robinson came to leave the Hotel or whether it was coincidental with the plaintiff leaving or by design. It was unclear to the Court of Appeal what evidence the trial judge had relied upon in coming to this conclusion.

Court of Appeal

The Hotel appealed the decision of Levy DCJ to the NSW Court of Appeal. It was decided the appeal should be limited to liability. Orders upholding the appeal were unanimously agreed with both Giles JA and Basten JA providing written judgments.

In reviewing all of the evidence, the Court of Appeal found there was confusion in the primary judge's appreciation of the evidence and that his fact finding had been flawed. This was particularly so given that the plaintiff's case at trial had been that he had voluntarily left the Hotel, not that the Hotel had failed in its duty of care by ejecting him from the Hotel at 9.30 pm. Instead, the plaintiff's case had been that Mr Robinson should have been ejected from the Hotel at an earlier time, after the 5.30 pm confrontation, or that alternatively, both the plaintiff and Mr Robinson should have been ejected at that time in a controlled manner. The Court of Appeal therefore found that it was not correct on any version of events that Hotel security ejected the plaintiff from the Hotel.

Central to the trial judge's reasoning on breach of duty of care was that the plaintiff was ejected from the Hotel. Cases including Rooty Hill RSL Club Limited v Karimi2 and Portelli v Tabriska Pty Limited3 deal with the duty of care owed by a hotel when a patron is involuntarily ejected following confrontations within the hotel which then continue off site.

The Court of Appeal confirmed that the Hotel owed to the plaintiff as a patron of the Hotel a duty to take reasonable care to prevent injury from the violent, quarrelsome or disorderly conduct of other patrons: Adeels Palace Pty Limited v Moubarak4. It was also necessary to consider the general principles set out in s 5B of the CLA, regarding whether there was a foreseeable risk of harm that was not insignificant and what a reasonable person in the position of the Hotel would have done in response to that risk.

Giles JA said nothing of the breach of duty of care owed to an ejected patron. Rather, he dealt with whether the Hotel, in the exercise of its reasonable care for the plaintiff's safety, should have ejected Mr Robinson from the Hotel at the time of the 5.30 pm confrontation, or that alternatively both the plaintiff and Mr Robinson should have been ejected at that time.

Giles JA considered it relevant that both the plaintiff and Mr Robinson were known to the Hotel and to security. He found that it was a reasonable response to the 5.00 pm confrontation to separate the plaintiff and Mr Robinson within the Hotel, notwithstanding considerable aggression and reciprocal animosity between the parties. It also was relevant that Mr Robinson had requested the Hotel eject the plaintiff and himself so the fight could continue outside.

Although Giles JA considered it was an option for the Hotel to eject the plaintiff and/or Mr Robinson after the second confrontation at 5.30 pm, he was not satisfied that continuing the separation despite the second confrontation was unreasonable. It was noted that the Hotel had successfully quelled both confrontations and had re-enforced the separation of patrons who were generally entitled to take advantage of Hotel facilities. It was further observed that continuing the separation was effective as there were no further confrontations after 5.30 pm until the plaintiff left the Hotel 4 hours later. Giles JA therefore found that it was not established that the Hotel was in breach of its duty of care to the plaintiff in failing to eject the plaintiff and/or Mr Robinson after the 5.30 pm confrontation.

Based on the decisions of Karimi and Portelli, Basten JA considered that to establish negligence against the Hotel, the plaintiff had to prove that responsible staff in the Hotel knew, or ought to have known, at the time the plaintiff left that there was a real risk of harm of him being pursued and attacked by Mr Robinson. It was also necessary that the plaintiff establish when he left the premises and that Mr Robinson knew, or was in a position to know, when the plaintiff had left the Hotel. If those elements were established there would then be a question as to what steps could reasonably have been taken to prevent Mr Robinson leaving the Hotel or otherwise to protect the plaintiff after the plaintiff left the Hotel. As pointed out by Giles JA, any case depending on this approach might have faced formidable difficulties which may explain why no such case was pleaded.

Expert evidence of Mr Jennings on behalf of the plaintiff that it was not acceptable to allow Mr Robinson to remain in the Hotel after his second confrontation, was rejected by the Court of Appeal. The fact both men were known to Hotel security staff and security guards was deemed to be relevant in determining what was a reasonable response to the risk of injury.

Basten JA found that the plaintiff's case differed from Karimi and Portelli in two significant respects. Firstly, the aggressor (Mr Robinson) was not ejected from the premises and secondly, the plaintiff's departure was not supervised by Hotel staff as in the case of an involuntarily ejection.

Basten JA did not consider there was any incident which may have alerted the Hotel to a continued risk of aggressive behaviour by Mr Robinson towards the plaintiff at 9.30 pm when the plaintiff voluntarily left the Hotel. He therefore disagreed with the primary judge's finding that the Hotel had a continuing duty to monitor the behaviour of both the plaintiff and Mr Robinson. Basten JA also agreed with Giles JA that there was no evidence to establish that the separation of the plaintiff and Mr Robinson constituted a breach of the Hotel's duty of care to the plaintiff.

The Court of Appeal unanimously ordered that the appeal be allowed and that judgment be entered for the Hotel. The Court of Appeal also set aside orders made by Levy DCJ regarding contribution of 70% by Mr Robinson, noting that the plaintiff himself had conceded in closing submissions at trial that Mr Robinson was not in fact liable. It was noted this must have been overlooked by the trial judge.


This decision demonstrates that hotels are not under a general duty to eject troublesome patrons from their premises but maintain the right to take alternative action, including separating patrons within the hotel. Hotel patrons are entitled to take advantage of the hotel facilities and overreaction may infringe their rights.

Industry practice is a guide, not the determinant of reasonable care for the safety of hotel patrons.

Although the Court of Appeal has distinguished this case from Karimi and Portelli, they reaffirmed the decision in Adeels Palace that a hotel has a duty to take reasonable care to prevent injury to a patron from violent, quarrelsome or disorderly conduct of other patrons. However, this duty will always need to be considered in light of the general principles set out in s 5B of the CLA. The threshold question remains what a reasonable person would do in response to the risk of injury.


1 Allsop P; Giles JA and Basten JA

2 [2009] NSWCA2

3 [2009] NSWCA17

4 [2009] HCA48

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