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 carpark.

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 assault.

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 decision.

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 the premises.

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 [2009] NSWCA 2

Portelli v Tabriska Pty Ltd & Ors [2009] NSWCA 17

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