Portelli V Tabriska Pty Ltd & Ors  Nswca 17
Allsop P, Hodgson JA and Macfarlan JA
- Following from the recent decision in Rooty Hill RSL Club Ltd –v- Karimi  NSWCA 2, the Court of Appeal was once again asked to consider the duty of a licensed club to protect its patrons from the tortious or criminal conduct of a fellow patron. Testing the boundaries of how far the duty of a licensed club extends, the Court was asked to consider whether a licensed club could be liable for an assault on a patron which occurred outside the club's premises.
- The plaintiff was seriously injured when he received kicks and blows to the head on a public street outside the Aspen Hotel in Jindabyne.
- The plaintiff had earlier been involved in an altercation with the third and fourth defendants inside the hotel. The third and fourth defendants were asked to leave via the front door whilst the plaintiff and his friend finished their drink. They later left via the back door which opened up to a laneway after waiting about 15 minutes. The security guard, Mr Ranger, checked from the back door to see the area was clear before allowing the plaintiff and his companion, Mr Hanson, to leave.
- As the plaintiff and his companion were walking up a street which intersected with the laneway they were seized upon by the third and fourth defendants and a fight erupted.
- The plaintiff brought a claim against the first defendant as the owner and occupier of the hotel (Tabriska Pty Ltd), the second defendant as the licensee of the hotel (Mr Herstik), and the fifth defendant as the provider of security services to the hotel (Gorton John Lee t/as Elite One National Security Service). The plaintiff's claim against the third and fourth defendants, two of the assailants, settled.
Supreme Court Proceedings
- Hislop J dismissed the claims against the first, second and fifth defendants. His Honour held that any duty owed by the defendants could only extend to protecting the plaintiff from injury which occurred on the club's premises as it could not be expected that the defendants could have had control over anything which happened on a public street.
- His Honour held that even if a duty extended to an injury occurring outside the club's premises, the defendants were not privy to facts which could have led them to apprehend the risk of further harm being occasioned to the plaintiff when he left the premises.
- In the event that Mr Herstik should have been aware that the group who were ejected from the club wanted to continue to fight, his Honour did not accept that telephoning the police and the other matters submitted by the plaintiff, including calling a taxi, would have avoided the plaintiff's injury.
- Allsop P upheld the primary judge's finding that any duty of care that existed could have only been based on the defendant's having knowledge of the fact that the plaintiff was at risk of further harm. It was found that the evidence did not reveal that the defendants should have appreciated such a risk.
- This was enough to dispense with the appeal, however Allsop P went on to discuss the scope of the duty owed by the defendants. Unlike the primary judge, his Honour was not convinced that the duty of the occupier of a licensed club does not extend to circumstances where the wrongdoing causing injury to the plaintiff occurred off the club's premises. He held that the duty of an occupier of licensed premises is not extinguished when the instigator of an altercation is ejected from the club's premises and that the obligation to take reasonable steps to respond to a foreseeable risk of injury to the remaining patron remains.
- Allsop P stopped short of holding that the duty extends to a positive obligation on the part of a licensed club to become the protector or guardian of the innocent patron whenever danger outside the hotel is reasonably foreseeable. His Honour held that in the subject case it might have been prudent for the club to have notified the police if the hotel or security should reasonably have perceived a danger still existed to the plaintiff after the initial fight was broken up and the protagonists ejected from the hotel.
- On the question of causation, and on the assumption that the defendants owed a duty to the plaintiff, his Honour considered that a phone call to the police would have averted the injury.
- In Modbury Triangle Shopping Centre v Anzil  HCA 61, the High Court held that in general liability cannot attach to the occupier of premises for an assault occasioned to a plaintiff if the attack occurred in a nearby street or anywhere other than the land occupied by the defendant. The rationale behind the High Court's approach was that control of the premises is the basis of such a claim. The assault in Modbury occurred in the car park of a shopping centre and not on licensed premises. However, in this case Allsop P held that the duty of a licensed club to protect its patrons from an assault occasioned by a fellow patron does not cease at the boundary of its premises and can extend to an assault occurring as far as a nearby public street. The question therefore remains, when does the duty of an occupier of licensed premises to protect against such harm cease? Perhaps when a plaintiff is safely tucked in bed?
- Although this is the second recent victory for occupiers of licensed premises (see Rooty Hill RSL v Karimi), these cases should not necessarily be viewed as a charter for defendants as each case is dependant on its own facts. His Honour alludes to situations where given the right circumstances liability may attach to a licensed club in respect of an assault to a patron occasioned by a fellow patron. See for example Spedding v Nobles & McNally (2007) NSWCA 29. More troubling is the fact that the duty to protect against such a harm does not stop at the club's premises. His Honour leaves open the question of how this duty can be discharged, only that it might be prudent to telephone the police in some instances.
- The threshold test in such cases as succinctly put by Bell JA in Karimi is that the imposition of a duty on the part of the occupier of licensed premises to protect their patrons from the criminal 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.
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