Basic HTML Version
15
touchline
of the extent of the duty depends upon
a prospective assessment of whether a
patron posed a danger to other patrons
prior to the incident instead of reviewing
liability issues with the benefit of hindsight.
Show me the way home
In the previous cases, the courts
considered a licensee’s duty to protect
patrons from the behaviour of other
aggressive patrons. This gives rise to a
final question:- what is the extent of the
licensee’s duty to protect a patron when
they leave the premises?
This question was first considered by the
High Court in
Cole v South Tweed Heads
Rugby League Football Club Ltd
6
. The
plaintiff was injured when she was run
down in the early evening while drunk.
Prior to this incident she had attended a
function at the defendant’s premises and
commenced drinking at about 9.30am.
There was no evidence that she was
served alcohol by the respondent after
12.30pm. The plaintiff was refused
service at 3.00pm because of
her state of intoxication and
at approximately 5.30pm, the
club’s manager asked her to
leave the premises and offered
to provide a courtesy bus to
drive her home or to call a taxi.
The plaintiff refused both offers
in crude terms and one of her
apparently sober companions
told the manager that they
would look after the plaintiff
and shortly after they left the club.
The High Court found that the club
had taken reasonable care to protect
the plaintiff from the risk of injury by
offering a courtesy bus or a taxi and the
plaintiff’s claim against the club failed.
The High Court revisited the issue of the
obligations of licensed premises to their
patrons in
Tandara Motor Inn v Motor
Accidents Insurance Board
7
. This case
6
(2004) HCA 29
7
[2009] HCA 47
The most dramatic form of altercation
between patrons at licensed premises
was considered by the High Court in
Adeels Palace v Moubarak
5
. In that case,
the assailant had left the premises after an
altercation. He returned to the premises
with a pistol and shot the plaintiff (who was
in fact a mere bystander) in the stomach.
The plaintiff commenced proceedings
against the premises alleging that the club
had breached its duty of care by failing to
employ licensed security personnel.
The High Court noted that, having regard
to the number of people attending the club
and the fact that the club was attended
by old and young patrons, this did not
demonstrate a need for provision of
security personnel and there was nothing
in the history of the premises which would
have warranted a conclusion that it was
probable that violence would erupt in
or about the restaurant. Further, even
if the premises had engaged security
staff, there was no basis for concluding
that security staff would have deterred or
prevented the re-entry of a person armed
with a gun when later events showed
that he was ready and willing to use the
weapon on persons. Consequently, the
plaintiff was unable to prove the failure to
provide security personnel had caused
his injury.
All three decisions illustrate that the
circumstances in which patrons may be
injured by the criminal conduct of other
patrons are unique and the assessment
5
[2009] HCA 48
plaintiff inside the hotel over a game of
pool close to closing time. The assailants
were asked to leave the hotel via the front
door. The plaintiff and his companion
were allowed to finish their drinks and
their game of pool and, after a short
interval left through the back door of the
hotel.
The plaintiff’s claim was dismissed at trial
and the NSW Court of Appeal dismissed
the plaintiff’s appeal, noting the following
relevant matters:
• The altercation at the hotel did not
involve any serious violence apart
from a minor cut to the plaintiff’s
chin.
• The plaintiff’s companion gave
evidence that he was not
expecting further trouble from their
assailants and had no concerns
for his safety.
• Themanager of the premises knew
the assailants and had never seen
them behave in a manner which
suggested they were violent.
The Court of Appeal noted that
any duty of care could only have
been based on a conclusion
that the circumstances should
have given the licensees an
appreciation that there was
a risk of harm to the plaintiff
unless further steps were
taken. The court added that
care needs to be taken to
prevent recognition that the
control which can be exercised by a
licensee is transformed into a positive
obligation to become the protector of an
innocent patron whenever danger can be
apprehended outside the premises. For
example, it might be prudent to call the
police if the licensee expects a fight will be
continued outside the hotel but this does
not mean the licensee has a legal duty to
do so or that they become responsible
for getting the innocent patron home
and outside the clutches of a potential
combatant outside the premises.
He returned to the premises with a pistol
and shot the plaintiff... a mere bystander...
The plaintiff
commenced proceedings
against the premises alleging that the club
had breached its duty of care by failing to
employ licensed security personnel.
F
Legal Focus