Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd V Bou Najem  NSWCA 29
- This is the third in a string of cases in which the NSW Court of Appeal was asked to consider the duty of care owed by the proprietor of licensed premises to protect its patrons from the tortious or criminal conduct of a fellow patron. The Court of Appeal held that the duty can extend to taking reasonable care to guard against injury from intoxicated, unruly or violent behaviour of other patrons, including criminal behaviour.
- The defendant conducted restaurant/nightclub premises at Punchbowl known as Adeels Palace. On 31 December 2002 to 1 January 2003 it held a New Year's Eve function attended by members of the public by payment of an admission price.
- In the early hours of 1 January 2003 a dispute on the dance floor erupted and came to involve a fight between the plaintiff, Mr Moubarak, and a Mr Abbas.
- Mr Abbas left the premises and returned with a gun. It was agreed that when he returned, Mr Abbas shot Mr Moubarak and Mr Bou Najem.
- The plaintiffs brought proceedings against the defendant in the District Court, claiming damages for negligence or in the alternative, for breach of contract.
District Court Proceedings
- Sorby DCJ found on the evening of 31 December 2002 and the early hours of 1 January 2003 there were no security present at Adeels Palace. This finding was not challenged on appeal.
- Sorby DCJ held that the defendant was liable in negligence to the plaintiffs and that it owed the plaintiffs "a general and wide duty ... to take care to avoid injuries caused by the unlawful actions of patrons (or invitees) on the premises during the course of the evening of 31 December 2002 and early hours of 1 January 2003".
- Sorby DCJ held that the duty of care was breached because the defendant's security arrangements at the time of the function fell far short of what reasonable care and skill required in all the circumstances. It was held that this inadequacy in the security arrangements contributed to, and so caused, the injury suffered by the plaintiffs.
- His Honour did not deal with the plaintiffs' alternative claim based in contract.
- His Honour found that the plaintiffs were not contributorily negligent and awarded Mr Moubarak damages in the sum of $1,026,682.98. Mr Bou Najem's damages were agreed at $170,000.
Court of Appeal Decision
- On appeal the defendant challenged the trial judge's findings in respect of duty of care, breach and causation. By Notices of Contention the plaintiffs sought to uphold the judgements in their favour on the basis of a differently formulated duty of care or alternatively on the basis of liability in contract.
- On appeal the defendant relied on Modbury Triangle Shopping Centre Pty Ltd v Anzil  HCA 61 to argue that the occupier of premises does not owe a duty of care in relation to the criminal conduct of third parties. The defendant conceded that cases such as Wagstaff v Haslem  NSWCA 28 recognise an exception to this principle in the case of licensed premises. The defendant submitted that there was no reason why the mere fact that the premises were licensed ones should bring a duty of care extending to the protecting patrons against the criminal conduct of third parties.
- The plaintiffs submitted that the present case fell within the recognised exception to Modbury. They further submitted that it is the general nature of the activities being conducted on the premises and the element of control exercised by the occupier which gives rise to the duty, and not actual or constructive knowledge of a patron's intoxication or propensity for violent behaviour.
- Giles JA who delivered the major judgment held that the duty of care owed by the defendant to patrons attending the New Years Eve function extended to taking reasonable care to guard against injury from intoxicated, unruly or violent (including criminal) behaviour of other patrons.
- Giles JA held that as occupier, the defendant was in a position to control who entered and remained on the premises, which could have been exercised through the presence of security guards. However, his Honour held that it is not the defendant's status of occupier that gives rise to the duty to protect patrons from the intoxicated, unruly or violent behaviour of other patrons, but rather the forseeability of injury from conduct on the premises plus the capacity to control the conduct.
- On causation, Giles JA held that on the balance of probabilities, security staff at the street entrance of the restaurant would have deterred or prevented Mr Abbas from re-entering the premises and shooting the plaintiffs.
- Although Campbell JA agreed that the duty arises from foreseeability of injury from conduct on the premises, plus the capacity of the defendant to control that conduct, he went on to state that although not the fundamental reason for why the duty exists, the status of occupier can be very relevant to the reason why the duty to take reasonable care to prevent bodily injury arising from the conduct of other people on the premises arises. His Honour reasoned that claims for bodily injury arising from the physical state of premises, in which the status of occupier allows a defendant to know about the physical condition of the premises and rectify any defects, are no different to claims for bodily injury arising from the activities of other people on the premises because it is similarly the status of occupier which confers on the defendant the ability to control the conduct of other people on the premises.
- Campbell JA also held that the availability of alcohol is part of the reason why a duty of care exists even though it did not play any prominent part in the cause of the plaintiffs' harm in this particular case. His Honour held that the history of previous incidents at the club, as well as the inherent probabilities of the type of activity being carried on in the club made it reasonably foreseeable that the patrons would include potentially violent and troublesome ones.
- In this case, Campbell JA pointed out that the defendant had even greater capacity for control than most hotel proprietors because entry to its premises was permitted only through one set of doors at street level.
- This case confirms that intoxication is not a necessary element to invoke the duty owed by a hotel and club to protect its patrons against the tortious or criminal conduct of fellow patrons. The duty of care owed by clubs and hotels extends to taking reasonable care to guard against injury from intoxicated, unruly or violent behaviour of other patrons.
- The duty arises because of the foreseeability of injury from conduct on the premises and the capacity of the defendant to control that conduct.
- Like the recent Court of Appeal decision in Rooty Hill RSL Club Ltd -v- Karimi  NSWCA 2 this case highlights the importance of having properly qualified experts establishing what is reasonable conduct in response to situations of the kind that the plaintiffs were involved in as most of the evidence sought to be relied upon by the parties in this case was rejected.
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