Rooty Hill RSL Club Ltd v. Karimi  NSWCA 2
Portelli v. Tabriska Pty Ltd & Ors  NSWCA 17
Last month we featured a recent decision in which an hotelier
was found liable to an intoxicated patron who was injured after he
had left the hotelier's premises. This month the story
The two cases featured this month have some striking
similarities about them: In both the claimants were assaulted
shortly after they had been evicted from the hotelier's
premises following an earlier altercation between the claimants and
their would-be attackers within the hotelier's premises. In
both the attackers were intoxicated but the claimants were not. In
both the claimants and their would-be attackers were evicted from
the hotelier's premises via separate entrances following
standard security practice. In both the claimants were only evicted
after security were satisfied that the would-be attackers posed no
ongoing threat to the claimants. Both claimants sued the hotelier
and their security staff. Ultimately both claimants met the same
judicial fate – judgment for the defendant, although
initially the one claimant was successful.
Had the claimants sued their attackers, there is no doubt they
would have been successful. The financial resources of the
attackers may have dictated why they were not pursued.
In both cases it was argued for the claimants that it was
reasonably foreseeable that there would be a further attack upon
the claimants given earlier events. In the one case it was argued
that the departure of both evictees should have been significantly
staggered by time delay and the claimant should have been escorted
to their car. In the other it was suggested, inter alia, that the
police ought to have been called and/or the claimant should have
been prevented from leaving the hotel until any danger had
In finding for the defendants the court recognised that as a
general rule, hoteliers may be liable for the tortious or criminal
conduct of patrons resulting from control exercised by the
hoteliers over patrons and their knowledge or ability to know the
intoxicated conditions of patrons. However the fact of intoxication
is not enough – there must be knowledge, actual or
constructive, of the aggressive character of a patron when
intoxicated. The court also recognised that an hotelier's duty
to take reasonable care to protect a patron from an assault by an
intoxicated aggressor may not come to an end upon eviction. The
difficulty for the claimants in both cases was that the court found
it was reasonable for security to have formed the view that the
attacker posed no ongoing threat to the claimant, despite their
intoxication and earlier conduct. Had a threat of attack existed
the court found that it may have been prudent to call the police
but it did not necessarily mean there was a legal duty to do so or
that the hotelier became the claimant's guardian.
As always, the extent of the duty will be dictated by the
particular circumstances. There will always be a point in time and
place where the hotelier's chain of responsibility for a patron
will be broken.
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.
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