NSW CA 155
27 June 2007
Tobias JA; Basten JA; Handley AJA
- The duty of an occupier of licensed premises to take reasonable care for the safety of patrons depends on proof that they knew or ought to have known facts requiring intervention to protect patrons and that they failed to take reasonable steps to safeguard an injured person from a foreseeable risk of harm.
- A plaintiff must establish a causal connection between a breach of duty and the injury sustained.
- The plaintiff attended the Collingwood Hotel to participate in karaoke. After the karaoke concluded, she and other patrons moved to the front bar.
- At about 12.45am an incident occurred involving at least two men, as a result of which one man was hurt and bleeding from his head. Security guards identified and removed the assailant and the plaintiff, who had nursing training, attended to the injured man. As the first assailant was being ejected from the Hotel, a further fracas developed and one or more patrons were knocked over, falling heavily across the plaintiff's back. She suffered a disc lesion in her lower back.
- The plaintiff sued the occupier of the hotel ("the Hotel") and the licensee of the hotel ("the Licensee"). She also sued the security contractor ("Security") which provided four security guards who were working at the Hotel on the night in question.
- The existence of ethnic tensions amongst "white Australian males" and "Islanders" at the Hotel was known by the defendants.
Decision of Trial Judge
- The critical issue at trial was whether the Hotel and Security staff ought reasonably to have foreseen after the first fight the risk of a further fight erupting with the possibility that this would cause injury to an innocent patron such as the plaintiff.
- Ashford DCJ accepted there were two fights in the Hotel that evening. Her Honour accepted that Security were not present when the first fight broke out in the front bar however at least one security guard entered the bar where the injured patron was lying on the floor.
- Her Honour accepted the security guard's evidence that he made enquiries of other patrons in order to identify the assailant. Her Honour accepted the security guards attempted to escort the alleged assailant from the premises however this appeared to have been ineffectual as the individual re-entered the Hotel.
- Her Honour accepted the plaintiff as a witness of credit. Her Honour found the security guard who firstly attended the front bar after the fight was an inarticulate witness who appeared "to be of an islander background" (the relevance of which was not explained).
- Her Honour essentially held there were clearly patrons who had been refused service of alcohol and who had engaged in violent behaviour. Her Honour made a finding that the bar attendant should have informed Security that she had refused service of alcohol to patrons who appeared to be drunk. In such circumstances, it was foreseeable that an injury such as the plaintiff's could occur.
- Her Honour held that, in the case of the statutory duty, breach of the duty coupled with an accident of the type suffered by the plaintiff was enough to justify an inference that the accident was caused by the breach of statutory duty.
Court of Appeal Decision
- The Court of Appeal was highly critical of Ashford DCJ, holding that her Honour had failed to adequately identify the manner in which the relevant duties of the defendants had been breached. Even if a breach of duty could have been established, the findings of fact made by her Honour failed to establish a causal link between any breach and the plaintiff's injury: per Basten JA, Handley AJA agreeing.
- It was further held that the factual findings of the trial judge did not ground any liability on the part of the defendants.
- The court cited with approval Chordas v Bryant (Wellington Pty Limited) (1988) 20 FCR 91 and the recent Court of Appeal decisions of Spedding v Nobles; Spedding v McNally and Wagstaff v Haslan as authority that an occupier of licensed premises may be liable for injury to a patron caused by the deliberate and unlawful act of another patron. This duty depends on the capacity and statutory obligation of the licensee to control conduct on licensed premises under the Liquor Act 1982 (NSW). However the Court emphasised there is no statutory cause of action for breach of the Liquor Act, if such a breach occurred.
- Security contractors had a duty to ensure the safety of patrons and to take reasonable measures to protect them from foreseeable harm. Those measures included ejecting patrons from whom violent conduct could be reasonably anticipated.
- The general issue was whether either the security guards or the hotel staff should have taken greater precautions because of an apparent risk of violence of the kind which in fact materialised.
- Basten JA observed that the Hotel's duty was satisfied by the presence of four security guards on the night in question, a level of staffing which was not challenged by the plaintiff as involving any breach by the Hotel.
- His Honour pointed out that Ashford J failed to identify what steps the security guards should have taken in order to fulfil their duty. Her Honour failed to address the necessary issues in relation to causation, namely as to how the exercise of reasonable care might have prevented the second fight or contained it away from the plaintiff. Without taking these steps, her Honour's findings as to the liability of Security could not be upheld.
- Security could have no liability without a finding as to causation and this was simply not open on the findings of fact made by the trial judge.
- The evidence indicated that, once the assault occurred, the Hotel staff took appropriate steps. The trial judge made a finding that the bar attendant should have informed Security that she had refused service of alcohol to patrons who appeared to be drunk. The implication was that, had Security been informed that people had been refused alcohol, the security guards would either have turned them out of the Hotel or taken other unspecified steps in relation to them. There was however no evidence that the security guards would have evicted patrons because they had been refused alcohol, absent disruptive behaviour. Handley AJA held there was no evidence that the second fight involved persons who had been refused service. Accordingly, the causal link between any such breach of duty on the part of the Hotel staff and the plaintiff's injury was missing.
- Basten JA held that, consistent with the approach taken by the High Court in Chappel v. Hart (1998) 195 CLR 232, "…a causal connection between breach and injury remains an essential element of the tort of negligence, to be proved by the plaintiff…".
- Accordingly, the evidence had failed to demonstrate relevant breaches which might have a causal connection with the injuries suffered. The plaintiff was not entitled to a second trial to attempt to make good the lack of such evidence.
- Tobias JA agreed that the primary judge's findings of liability could not stand given her imprecise factual findings. In dissenting, his Honour, however, considered there was a breach of duty on the part of either or both defendants which had caused injury to the plaintiff and that a new trial on the issue of liability and contribution should be held.
- Accordingly, the defendants' appeal was successful.
- This decision is consistent with the approach taken by the Court of Appeal recently in Spedding v Nobles; Spedding v McNally and Wagstaff v Haslan both being 2007 Court of Appeal decisions. The plaintiffs in McNally succeeded as that was a case where there was the necessary element of control on the part of the hotel licensee which the evidence indicated could have prevented the assault on the plaintiff.
- The same principles were applied with a different outcome by the Court of Appeal in Wagstaff v Haslan earlier this year where the Court of Appeal found the hotel staff had acted reasonably and that, whilst it was foreseeable that some people would become aggressive when drunk, it did not follow that a publican must treat every intoxicated patron as a potential source of unprovoked violence. By contrast, in McNally the bar manager had been notified of an earlier assault on one of the plaintiffs.
- The decision of the Full Court of the Federal Court in Chordas v Bryant (Wellington Pty Limited) (1988) 20 FCR 91 has now been referred to with approval in a number of appellate decisions in New South Wales in respect of the duty of care owed by the occupier of licensed premises to patrons who are assaulted by third parties on the premises, and remains good law.
- The Court reaffirmed the statement of the Full Court in Chordas that there is no statutory cause of action for a breach of the Liquor Act. Rather the relevant duty to exercise reasonable care for the safety of patrons depends upon proof that the hotel manager or licensee knew or ought to have known of facts requiring intervention to protect patrons and, in those circumstances, failed to take reasonable steps to safeguard the plaintiff from the foreseeable risk of harm: see generally Wagstaff v Haslam  NSWCA 28.
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