In Adeels Palace Pty Ltd v Moubarak & Najem (2009) HCA 48 the High Court of Australia considered the issue of a restaurant's duty of care to patrons who suffer harm at the hands of a third party, both at common law and also in the context of the statutory requirements under the Liquor Act and the Civil Liability Act in New South Wales.
On New Year's Eve in December 2002, Adeels Palace, a restaurant and function centre, held a New Year's Eve dinner dance for approximately 280 patrons.
The patrons were from a range of ages, with the High Court finding that it included family or friendship groups extending over several generations. This was important in determining the probability of the violent behaviour that eventuated.
In the early hours of the New Year a fight broke out on the dance floor and many patrons became involved.
One patron who was struck in the face left the restaurant and returned with a gun. A person by the name of Mr Najem ran into the kitchen where he was shot in the leg by the gunman. The gunman then searched for a Mr Moubarak who had struck him in the face and, on finding him, shot him in the stomach. The gunman then left the premises.
Both Mr Najem and Mr Moubarak claimed damages from Adeels Palace for personal injury, allleging that Adeels Palace was negligent in not providing any or any sufficient security during the New Year's Eve function. Both plaintiffs were successful before the District Court of New South Wales and the Full Court of the Supreme Court of New South Wales.
DUTY OF CARE
The High Court first determined the duty of care owed by Adeels Palace. In doing so, it made observations regarding the Civil Liability Act in New South Wales which sets out principles to be considered in determining negligence. The High Court also considered the Liquor Act in New South Wales, which the High Court noted contained provisions regarding the prevention of negative behaviour and which are similar to all Liquor Licensing Acts in Australian States and Territories.
The High Court found that the Liquor Act (common with that in other States and Territories) required, as a part of a licence, that licensees take reasonable care not to permit indecent, violent or quarrelsome conduct on the licensed premises.
Taking these factors into consideration, the High Court found that Adeels Palace owed each plaintiff a duty to take reasonable care to prevent injury from the violent, quarrelsome or disorderly conduct of other persons.
BREACH OF DUTY
Both plaintiffs principally asserted that Adeels Palace had failed to have security personnel, both at the door and in the second floor restaurant area. There were staff at the door but these were not security personnel.
The High Court observed that in determining whether the duty had been breached it was necessary to do so prospectively, that is, at a time before the events occurred. This necessarily directed the enquiry to what a licensee in the circumstances of Adeels Palace, which was promoting a function on New Year's Eve, should have foreseen. The High Court noted that evidence led at trial did not indicate that there had been violent or even general disorderly behaviour at Adeels Palace prior to the New Year's Eve function.
The High Court ultimately, however, did not need to make a finding as to whether there was any breach of duty or not, because the failure to provide security personnel had not been shown on the evidence to have been causative of the harm suffered by the two plaintiffs.
The High Court found that the Civil Liability Act in New South Wales requires a different test of causation than that which has in more recent times been endorsed by the High Court as applying at common law.
The High Court found that the Civil Liability Act requires a Court to use the "but for" test of causation. Therefore the question became whether, but for the provision of security personnel, the harm suffered by the two plaintiffs would have occurred.
The High Court found that there was insufficient evidence to establish that the harm suffered by the plaintiffs would not have occurred if security personnel had been present.
The evidence at trial from security experts was that had security personnel been at the front door or even in the restaurant area, it was problematic as to what could have been done by those personnel faced with a gunman entering the premises. The High Court found that there was insufficient evidence to conclude that, had security personnel been present, they would have been able to deal with the gunman in the particular circumstances, where the gunman evidenced through his behaviour an intent to do violence regardless of the consequences.
The High Court concluded that the evidence did not establish that providing security services would "probably have prevented the occurrence of injury to the plaintiffs".
Both plaintiffs therefore failed in establishing negligence.
RELEVANCE TO SOUTH AUSTRALIA
The case has significant relevance to South Australia. The Civil Liability Act in South Australia at section 34 contains similar provisions to those considered by the High Court and hence it is reasonable to conclude that the "but for" test of causation will be applied in South Australia.
In addition, the Liquor Licensing laws in South Australia contain similar provisions to the New South Wales Liquor Licensing laws, as observed by the High Court.
Accordingly, those who run licensed premises, restaurants or other catering facilities in South Australia will have a duty of care to take reasonable steps to prevent injury to patrons from the violent, quarrelsome or disorderly conduct of other persons.
Whether such reasonable steps have been taken, and the consequences if they have not, will vary according to the specific facts in each case.
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.