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Can you protect patrons from
themselves?
In
Freudenstein v Marhop Pty Ltd &
Ors
1
the plaintiff claimed damages for
personal injuries suffered in a fall from the
roof of his local hotel after he consumed
approximately 14 schooners of full
strength beer. At the time of the accident,
the hotel was undergoing renovations and
the bar was operating from the first floor
of the hotel. The plaintiff alleged that he
had become curious about the renovation
work and climbed through a doorway,
onto the roof of the hotel and fell onto soft
ground approximately four metres below.
Although the defendants alleged that the
plaintiff was ‘a very determined entrant’,
they were unable to demonstrate that
the renovation works had been secured,
appropriate warning signs had been
placed on the doorway to the renovation
work or safety fencing positioned around
the roof. Justice Kirby concluded that,
but for the defendants’ failure to secure
the doorway the plaintiff’s accident would
almost certainly not have occurred and
this was the substantial and effective
cause of the accident. Justice Kirby noted
that significant culpability must attach to a
succession of foolish actions on the part
of the plaintiff and reduced damages by
50% to reflect the plaintiff’s contributory
negligence.
In contrast to
Freudenstein
, in
Liebeck
v Dawsal Pty Limited
2
it was the plaintiff
who was unable to substantiate his claim
of negligence against the Kingston Hotel
in Canberra after he slipped on a walkway
after consuming 10 schooners of beer.
The plaintiff’s contemporaneous hospital
records noted that he was unable to
recall the circumstances of the accident
and his blood alcohol content at the time
of the accident was approximately 0.362
(a level of intoxication that would impair
balance and coordination and markedly
impair memory for events that occurred
during the period of intoxication). The first
reference to the plaintiff slipping appeared
1
[2010] NSWSC 724
2
[2010] ACTSC 141
in an entry in the plaintiff’s hospital notes
made by a social worker a week after the
incident.
The plaintiff led expert evidence that
the tiles were ‘treacherously slippery’
when wet and asserted that the tiles had
become wet due to rain. The plaintiff’s
expert conceded that the plaintiff would
have been very unlikely to slip and fall
if the subject floor had remained dry.
However, the allegations of rain were
not supported by contemporaneous
meteorological evidence and the duty
manager gave evidence that when he
inspected the accident site immediately
after the accident he could not see any
water, debris or other cause for the
plaintiff’s fall.
The plaintiff was unable to prove that
the area of the accident was slippery as
alleged and the court dismissed his claim.
Further, the court noted that even if the
claim had succeeded, damages would
have been reduced by 50% to reflect the
plaintiff’s contributory negligence.
The contrasting decisions illustrate that the
liability of licensed premises for accidents
involving their patrons ultimately depends
upon the individual circumstances of each
claim. The decisions also highlight the
importance of obtaining comprehensive
contemporaneous information about the
state of the accident site and measures
adopted to protect the safety of patrons.
As seen in
Liebeck
, such evidence can
provide a critical forensic advantage at
trial. Even if the premises are found liable
to a patron, the decisions demonstrate
that, in cases of severe intoxication, the
courts are prepared to make a significant
discount for contributory negligence.
Is Saturday night alright for
fighting?
In addition to a raging hangover, one
of the least attractive consequences of
excessive alcohol consumption is the fact
that, in some circumstances it results in
previously suppressed aggression being
released in the form of physical violence.
Although licensed premises have a duty
to take reasonable steps to respond to
Bar Room Blitz
While alcohol is often viewed as social lubricant, its impairment of a person’s judgement
and disinhibition of aggressive patrons also has the potential to oil the wheels of litigation
against operators of licensed premises. This article by
James McIntyre
, Senior Associate
at law firm DLA Piper, opens a six-pack of recent Australian decisions and a 2004 vintage
High Court decision to consider whether the combination of a busy venue and the inherent
difficulty in assessing the amount of alcohol consumed by a patron and their level of
intoxication, creates a cocktail of risks that inevitably results in an unpleasant damages
hangover for licensees.
a foreseeable risk of injury to patrons
how far does the licensee have to go to
protect a patron against assaults by other
patrons, especially when the aggressor
decides to persist with the dispute after
being ejected from the premises?
In
Rooty Hill RSL Club Ltd v Karimi
3
the
plaintiff was injured in the club’s car park
by a Mr Smith. Prior to the incident there
had been an altercation between the
plaintiff and his companions and Mr Smith
inside the club and, in accordance with
club policy, both parties were required
to leave the premises. Mr Smith was
escorted through the eastern entrance
at 11.00pm and his girlfriend informed
security staff that she would take him
straight home. They were observed
leaving the premises. Approximately
20 minutes later, the plaintiff and his
companions were invited to leave through
the western entrance. As the plaintiff
walked through the car park, Mr Smith ran
up to him and ‘king hit’ him with sufficient
force resulting in significant residual brain
damage.
The NSW Court of Appeal found that
there was no evidence that the plaintiff
or his companions were concerned about
a renewal of the altercation or that the
security staff had knowledge that Smith
still posed a danger to the plaintiff or other
patrons. Smith’s attack was sudden and
unexpected and would probably have
occurred even if measures proposed
by the trial judge, such as providing the
plaintiff with a security guard to escort
him to his car, had been employed.
Consequently, the plaintiff’s claim was
dismissed.
Similarly, in
Portelli v Tabriska Pty Ltd
4
the
plaintiff was injured in an assault several
blocks away from the licensed premises.
Prior to the assault, the assailants (the
third and fourth defendants) had been
involved in a brief altercation with the
3
[2009] NSWCA 2
4
[2009] NSWCA 17
F
Legal Focus