In a January 2009 decision, the NSW Court of Appeal examined the
duty owed by licensees/occupiers and security guards to protect
patrons from the risk of further assault when they have been
ejected following an altercation.
Whilst at the Rooty Hill RSL Club, Mr Karimi was the innocent
victim of an unprovoked assault by Mr Smith inside the Club. The
Club's policy was to eject all participants in such incidents,
regardless of blame.
Smith, who was intoxicated, was ejected first. The security
guards escorted Smith and his girlfriend out of the Club's
eastern exit. Initially, Smith was agitated and aggressive. Guards
stayed outside with Smith and his girlfriend for ten minutes until
Smith had calmed down. Smith and his girlfriend agreed that they
would go home. The guards watched them drive out of the eastern
At the same time, Karimi and his friends were in the western
foyer with other security guards. On receiving confirmation over
the radio that Smith had driven away, the guards had Karimi and his
friends leave the Club via the western exit.
Whilst making his way to his car, Karimi was again attacked by
Smith. Smith's girlfriend had apparently driven Smith to the
western carpark, where he ran up to, and "king hit"
Karimi. Karimi was rendered comatose for approximately 2 months and
suffered significant residual brain damage as a result of the
Karimi brought proceedings against the Club, the security
company (Allied) and Smith. Relevantly, at first instance the trial
judge found the Club and Allied liable. Both appealed the
The Court of Appeal noted that the act of ejecting a patron can
easily render them vulnerable. Accordingly, the duty owed to
patrons by the Club and Allied did not come to an end after
aggressive or intoxicated patrons had been ejected. Allied had
knowledge of Smith's intoxication and aggressive behaviour.
Accordingly, a duty arose to take reasonable care to protect Karimi
from Smith's criminal conduct.
However, the Court considered that, in the circumstances of
Karimi's case, the duty owed had been discharged: Allied stayed
with Smith, satisfied themselves that Smith had calmed down and
intended to leave the premises and the guards watched him drive off
In assessing whether the Club or guards ought to have
appreciated the risk of a further assault by Smith, the Court was
mindful that neither Karimi nor his companions were apprehensive of
a further incident.
Less than a month after the Rooty Hill RSL decision,
the NSW Court of Appeal, differently constituted, considered the
issue again in Portelli. Again, participants in an
altercation were ejected from a hotel, by staggered departures from
different exits. A second fight amongst the same groups occurred a
short distance from the hotel. The Court confirmed the duty of
licensee/occupiers and/or guards only arises if the circumstances
should have reasonably led them to appreciate a risk of harm to the
remaining patron to be ejected if further steps were not taken to
protect him or her.
If the duty arises, it may not be discharged by simply ejecting
the aggressor. If it is reasonably foreseeable that the fight will
resume, even if it is beyond the premises, it may be prudent to
call the police, but it is not necessarily a legal duty to do so.
Depending on the circumstances, it may be sufficient to make the
remaining patron aware of the danger so that, as a reasonable
adult, that patron can make his or her own decision as to how to
deal with the situation.
The key aspect of both cases was that the duty did not arise
unless the defendants ought reasonably to have perceived a risk to
the remaining patron. However, it also follows that once a threat
is perceived and the duty has arisen, the reasonable steps required
to minimise the risk will increase in accordance with the degree of
vulnerability of the remaining patron.
Rooty Hill RSL Club Ltd v Karimi  NSWCA 2
Portelli v Tabriska Pty Ltd & Ors  NSWCA
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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