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Responsible Occupiers of Licensed Premises Give Disorderly Patrons the Boot By Melanie Cox & Paul Angus | February 2008 Area of Expertise | General Insurance

Summary On 5 December 2007, the New South Wales Supreme Court considered the liability of the occupier, the licensee, and the provider of security services of a hotel, for injury occasioned to a hotel patron in a fight between persons in the street, where there had been a previous altercation between those persons in the hotel.

Who Does This Impact? Occupiers and licensees of licensed premises, security service providers, and their insurers.

What Action Should Be Taken? Occupiers of licenced premises should implement good risk management strategies and ensure compliance with incident procedures regarding the ejection of disorderly patrons, in order to minimise their exposure if an incident does occur where a patron is injured in, or in the immediate vicinity of, the premises.

Clinton Joseph Portelli v Tabriska Pty Ltd & Ors [2007] NSWSC 1256 The Claim The plaintiff sustained injury on 1 August 1998 in a fight with a group of men outside a hotel, having been involved in a fight some 1015 minutes earlier with those men in the front bar of the hotel. As a result of the earlier altercation, three of the men (not including the plaintiff ) had been required to leave the hotel. The plaintiff sought to recover damages for his injuries from the owner and occupier of the hotel (the first defendant), the licensee of the hotel (the second defendant), two of his assailants (the third and fourth defendants)1, and the supplier of security services to the hotel (the fifth defendant). The plaintiff alleged that the first and second defendants owed a non-delegable duty to take such steps as were necessary for the safety of patrons on and in the vicinity of the premises and that they were vicariously liable for the action or inaction of the fifth defendant in respect of safety and security on the premises. The defendants denied liability to the plaintiff and alleged the plaintiff was guilty of contributory negligence.

Factual Findings of the Court The Court found that: •

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At the time of the incident, the plaintiff’s faculties were not affected by alcohol to any degree which was of significance.

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Responsible Occupiers of Licensed Premises Give Disorderly Patrons the Boot by Melanie Cox & Paul Angus

As only the front bar of the hotel was open, the two employees working in the bar and the security guard on duty was an appropriate level of staffing.

The altercation was terminated within a few moments by the hotel staff, and the men involved were escorted from the hotel through the front door.

Shortly after the altercation, the plaintiff left through a back door, a method of separating combatants that complied with standard industry practice and was a successful practice.

The group of men remained in the street outside the hotel after the altercation.

At the time the plaintiff left the hotel, he had no concern for his safety, was not expecting further trouble and had no thoughts that he might be confronted by the group of men.

Liability Findings of the Court The Court found in favour of the defendants in dismissing the plaintiff’s claim and considered the following issues:

THE DUTY OF CARE The Court considered relevant two general principles as follows: (a)

“It is…exceptional to find in the law a duty to control another’s actions to prevent harm to strangers. The general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third.” - Smith v Leurs (1945) 70 CLR 256 at 262; and

(b)

“…an obligation to exercise reasonable care must be contrasted with an obligation to prevent harm occurring to others. The former, not the latter, is the requirement of the law…the common law recognises ‘a duty to take reasonable care to avoid doing what might cause injury to another, not a duty to act to prevent injury being done to another by that other, by a third person, or by circumstances for which nobody is responsible’.” - Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 81 ALJR 1773 at [51].

The Court held that the duty of care owed by the first and second defendants relevantly extended only to preventing injury to the plaintiff on the premises under their control. It did not encompass a duty of care where injury to the plaintiff was occasioned by the deliberate wrongdoing of persons over whom the defendants had no control in a public street.

KNOWLEDGE OF MANAGER AND LICENSEE The Court held it was not established that the manager and licensee knew or ought to have known facts requiring intervention to protect patrons. Similarly, there was no acceptable evidence the plaintiff expressed or exhibited any concerns in this regard yet he was in a better position than anyone, by reason of his involvement in the argument and altercation, to observe and determine whether the group was a danger.

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Responsible Occupiers of Licensed Premises Give Disorderly Patrons the Boot by Melanie Cox & Paul Angus

BREACH OF DUTY It was suggested by the plaintiff that the defendants could have taken a number of steps to prevent the injury including calling a cab, calling the police to take the plaintiff to his accommodation, trying to disperse the group, escorting the plaintiff clear of the premises or to the police station, or keeping the plaintiff on the premises. The Court held there was no evidence that the steps which the plaintiff asserted should have been taken were either practicable or reasonable or would have been taken following consultation with the plaintiff or would have avoided injury.

IMPLICATIONS Whilst this case can be partially distinguished on the basis that the assault did not take place directly on the premises (although it was in the vicinity), the court moved away from a recent trend of holding occupiers of licensed premises liable for assaults in and around their premises. The decision also acknowledges that if an occupier and the relevant security ofďŹ cers take all reasonable action in response to a foreseeable danger to a patron, then liability for the criminal actions of a third party assailant may be avoided. The implications for occupiers of licensed premises, the security ďŹ rms they engage and the insurers of both, is to ensure that all reasonable steps are taken to remove ďŹ ghting patrons from the premises in a way that minimises the parties coming together again in any foreseeable manner or in the vicinity of the premises. Compliance with good risk management strategies and incident procedures should assist in minimising the potential liability of occupiers of licensed premises to claims by patrons injured in altercations if an incident does occur.

Endnotes 1

The proceedings against the fourth defendant were resolved at the commencement of the hearing. The proceedings against the third defendant were discontinued.

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Responsible Occupiers of Licensed Premises Give Disorderly Patrons the Boot by Melanie Cox & Paul Angus

For more information, please contact: Melanie Cox Lawyer T: 02 8257 5770 melanie.cox@turkslegal.com.au

Paul Angus Partner T: 02 8257 5780 paul.angus@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 Business & Property | Commercial Disputes | Insurance & Financial Services | Workers Compensation | Workplace Relations

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Responsible Occupiers of Licensed Premises Give Disorderly Patrons the Boot  

On 5 December 2007, the New South Wales Supreme Court considered the liability of the occupier, the licensee, and the provider of security s...