Adeels Palace Pty Limited v Moubarak; Adeels Palace Pty Limited
v Bou Najem  HCA 48
Hoteliers can breathe a little more easily thanks to the High
Court's recent rejection of two personal injury claims for
damages totaling almost $1.2M. This comes on top of the Court's
same day rejection of a third claim arising from the death of an
intoxicated patron, the subject of last week's Legal Alert.
The present claims arose from random shootings on licenced
premises during New Year's Eve celebrations in 2002. We
reported on these claims earlier this year when the claimants were
successful in the New South Wales Court of Appeal.
The shootings occurred following an earlier dance floor brawl
involving the gunman. Following the brawl the gunman left the
premises before returning with a gun which he then discharged. The
gunman was able to freely re-enter the premises as there were no
security staff at the entrance to the premises and no monitoring of
The hotelier unsuccessfully argued before the NSW Court of
Appeal that, even if security staff had been present at the door,
they may not have been able to stop the gunman.
The Court of Appeal found that the security failures contributed
to the occurrence of the claimants' injuries rendering the
hotelier liable. The Court thought it significant that there had
been eight police incidents, three involving firearms, in the
vicinity of the premises in the preceding four years, despite none
having occurred within the licenced premises.
The hotelier's argument was finally upheld in the High
A unanimous judgment the High Court found as follows:
The hotelier owed both claimants a duty to take reasonable care
to prevent injury to them from the violent, quarrelsome or
disorderly conduct of other patrons. The hotelier had disputed
this. The court referred to the NSW equivalent of sections 165
& 165A of the Liquor Act 1992 (Qld) as supporting (but not
creating) that duty of care given the Act's approval of the use
of reasonable force to evict unruly patrons.
The hotelier, in discharge of that duty, was required to
consider before the particular function began (rather than with the
benefit of hindsight), whether security was warranted taking into
account such matters as:
the number of patrons expected to attend;
the atmosphere that could reasonably be expected to exist
during the function; and
whether there had been any suggestion of violence at similar
events held in comparable circumstances, either at this
establishment or elsewhere.
The fact that there is always a risk that there will be some
altercation between patrons, especially those who consume alcohol,
is not sufficient of itself to dictate the need for security. Each
case must be judged on its own facts looking at the probability of
a risk eventuating rather than its possibility. Here, due to the
absence of evidence, the Court did not reach a conclusion as to
whether security was necessary at all.
The result depended on causation. There was a possibility that
security staff stationed at the entrance may have been able to
prevent the would-be gunman re-entering but no evidence that
security could or would have been able to do so. Security might
have delayed re-entry but nothing more. It followed that the
claimants failed to establish that, but for the absence of
security, the injuries would not have occurred. They failed to
prove factual causation in terms of the NSW equivalent of section
11 of the Civil Liability Act 2003 (Qld).
Hoteliers should applaud the High Court for its approach to
these claims. One should keep in mind however the High Court's
sobering advice that every case must be decided on its own
Cooper Grace Ward was named Joint Best Australian Law Firm in
the BRW Client Choice Awards 2009 - Revenue < $50m.
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