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Occupiers Only Required to Take “Reasonable” Precautions in the Circumstances Melanie Cox | September 2006

HOBONA PTY LIMITED & ANOR v RICHARD GREMMO [2006] NSWCA 261 On 21 September 2006, the New South Wales Court of Appeal upheld an appeal by the defendant occupier on the basis that the trial judge erred in finding negligence in the manner in which employed security guards responded to a situation. The case raises the question of what reasonable steps an occupier must take in relation to a risk in the process of determining the occupier’s liability.

Facts The plaintiff, Richard Gremmo, was injured on Christmas Eve in 2000 whilst a patron at the Castle Hill Tavern, a business conducted by the first defendant and of which the second defendant was the licensee. At the time of the incident, the plaintiff was standing with about 300 other people in the car park of the tavern which had been fenced off that night for the service of alcohol. Earlier that evening, a female employee had been sexually harassed and a female patron had been assaulted by another patron. This had caused a heightened atmosphere of tension and a scuffle broke out amongst a small number of patrons. It was clearly established that at least four security guards arrived within 20 to 30 seconds of the altercation having broken out. Two or three of those security guards took steps to restrain some of the patrons involved and removed three of the persons involved in the physical altercation from the area. Two security guards remained. It is not clear precisely what happened at that point, but it appears that another patron picked up a glass from a table, and in a swinging action with his arm, connected with another patron’s head and then either struck the plaintiff or let go of the glass, which in turn struck the plaintiff and caused him injury. The plaintiff brought a claim for damages against both defendants for injuries that he suffered on that night.

At First Instance McLoughlin DCJ found that the defendants had breached their duty of care and that the opponent was entitled to damages. His Honour awarded damages in an amount just under $40,000. Although the trial judge made a finding that there was nothing in the conduct of the assailant that indicated to anybody that he was likely to do what he did, His Honour nevertheless found that: •

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At the time the security personnel intervened it was clear there was:

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“… a smouldering ongoing problem between a number of people that had to be controlled otherwise violence could erupt”. •

There had been negligence in the manner in which the security guards responded to the situation in that they did not attempt to control the crowd properly, but were only concerned with the removal of persons from the area, leaving a number of other potential protagonists unescorted and uncontrolled. That is to say, the security personnel turned their backs on a group of angry people, whose anger was “smouldering” - many of whom had been consuming alcohol - before the fracas had been brought under control.

This failure to properly contain the situation had created a scenario for injury, hence the security guards allowed the situation to develop to the point where the plaintiff was struck with a schooner glass.

The defendants should have only used plastic glasses in this temporary area on this particular night in an attempt to minimise the risk of assault (as opined by the security expert called on behalf of the plaintiff ).

On Appeal The New South Wales Court of Appeal unanimously allowed the appeal, finding that:

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The findings of the trial judge, in particular that there was a smouldering situation involving angry persons who had not been brought under control by the security guards, were findings made without any evidentiary foundation and were incorrect.

There is no doubt the defendants had a duty of care to the patrons on that evening to take reasonable steps to ensure their safety. It was also reasonably foreseeable that on such an evening the large crowd could potentially be violent, hence the defendants needed to take reasonable steps in relation to that risk.

The defendants had responded to that risk by engaging additional security guards that were not insufficient in number, and all of whom were properly trained.

There was no evidence that those security guards who remained with the crowd were not appropriately controlling what continued to go on or that the security guards acted negligently in the manner in which they controlled the situation.

It was not negligent for the security guards to have failed to observe that one of the patrons who had not previously been observed misbehaving or acting in any violent way would, without provocation, do what he did in taking a swing with a glass in his hand.

The defendants had taken appropriate measures to meet their duty of care to the plaintiff and to require plastic glasses imposed an unreasonable standard of care in the circumstances.

It was not suggested that the use of plastic glasses was a necessary step that should have been taken in the circumstances. It was only one of a range of steps that could have been taken.

To require the use of plastic glasses would have been a possible - but an extreme - precaution in circumstances where other appropriate precautions had been taken by the engagement of

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properly trained security guards. This would impose an unreasonable standard of care in all of the circumstances.

Implications Whilst commercial occupiers, especially those involved in the service of alcohol, remain under a high duty of care to entrants, the NSW Court of Appeal has indicated that occupiers are not required to take precautions that only become obvious with the benefit of hindsight. Although many steps may be taken by an occupier given the benefit of hindsight, the question is whether appropriate measures have been taken by an occupier given the information available. In this instance, the engagement of a sufficient number of appropriately trained security personnel by the defendants to control the crowd was sufficient to discharge the defendants’ duty of care to the plaintiff.

For more information please contact Melanie Cox Lawyer T: 02 8257 5700 melanie.cox@turkslegal.com.au

Sydney | Level 29, Angel Place, 123 Pitt Street, Sydney, NSW 2000 | T: 02 8257 5700 | F: 02 9239 0922 Melbourne | Level 10 (North Tower) 459 Collins Street , Melbourne, VIC 3000 | T: 03 8600 5000 | F: 03 8600 5099

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Occupiers Only Required to Take “Reasonable” Precautions in the Circumstances  

On 21 September 2006, the New South Wales Court of Appeal upheld an appeal by the defendant occupier on the basis that the trial judge erred...

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