Adeels Palace Pty Limited v. Moubarak; Adeels Palace Pty
Limited v. Bou Najem  NSW CA 29
The courts have been busy in recent months dealing with a string
of cases involving the liability of licensees for injuries caused
to patrons through the criminal activities of other patrons. This
is the fourth recent such case we have reviewed in our legal alerts
and the third in recent months from the New South Wales Court of
Appeal. This time however alcohol did not play a prominent
The case involved two claimants who each successfully claimed
damages (totalling almost $1.2M) against a licensed
restaurant/nightclub after being shot by a patron during busy New
Year's Eve celebrations in 2003. The shooting occurred
following an earlier dance floor brawl involving the would-be
gunman. Following the brawl the would-be gunman left the premises
before returning with a gun which he then discharged.
The gunman was able to freely re-enter the premises due to there
being no security staff at the entrance to the premises. Had there
been security it would have been apparent to them that the gunman
had blood running down his face from the earlier brawl. Whether
security would have seen the gun is unknown. The premises did have
10 CCTV cameras in place but they were not monitored.
There had been eight police incidents, three involving firearms,
in the vicinity of the premises in the preceding four years which
the court thought shed some light on the nature of the
establishment and its likely patrons. This dictated, in the
court's view, that a security officer be stationed at the front
door to prevent re-entry of unruly patrons and the absence of a
guard amounted to a breach of duty on the part of the licensee.
The licensee argued that security may not have been able to stop
the gunman, particularly if the gunman had turned the gun upon
them. Whilst acknowledging that argument, the court found that on
balance the trial judge was entitled to regard the use of force
against the security staff as quite unlikely and to conclude that
security would have had a successful deterrent or preventative
effect. As such, the shortfalls with security significantly
contributed to the injury occurring.
Again the court highlighted the element of control a licensee
has over what occurs on their premises as critical to establishing
the duty of care. This meant the licensee had a duty of care to
protect patrons in relation to violent behaviour whether from
intoxication of a patron or otherwise. Intoxication was found to be
a common cause for intervention but not essential to create the
duty of care.
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