In a decision affirming the High Court authority in Adeels Palace Pty Ltd v Moubarak1, the NSW Court of Appeal dismissed an appeal by a plaintiff who alleged that the occupier of a licensed premises was negligent for failing to increase its supervision of a quarrelsome patron who later assaulted him.
The plaintiff, Mr Ross Tilden, and Mr Rolland Gregg were members of Ettalong Memorial Bowing Club (Club) on the NSW Central Coast. The men had a history of animosity dating back to 2001, when there was a dispute regarding the mismanagement of funds raised by the Club’s darts club raffle. While Mr Gregg would occasionally make verbal threats towards the plaintiff, there had been no prior incidents of violence between them.
On 28 February 2010, Mr Gregg and the plaintiff were sitting near each other in an outside area of the Club. Sporadically over a period of about 20 minutes, Mr Gregg verbally abused the plaintiff. The plaintiff then made an offensive remark to Mr Gregg. In response, Mr Gregg punched the plaintiff, causing his head to hit a brick wall.
First instance decision
The plaintiff brought proceedings for the intentional tort of assault against Mr Gregg. He also sued the owner of the Club claiming damages for negligence. As a result of the assault the plaintiff claimed he sustained injuries to his cervical spine and an aggravation of his pre-existing lower back and psychological injury.
At first instance, it was accepted that the Club owed the plaintiff a duty to take reasonable care to prevent him from being attacked by other persons who are aggressive, or are likely to be aggressive, because they are affected by alcohol.
The plaintiff argued that the exercise of reasonable care required the Club to inform the duty manager or the security guard of Mr Gregg’s propensity for violent behaviour. He also argued that there should have been a CCTV camera installed to cover the outdoor area of the Club, as this area was not in view of the bar staff. These precautions, the plaintiff alleged, would have caused Mr Gregg either to be removed from the premises by staff or it would have deterred him from assaulting the plaintiff.
North DCJ was not satisfied that either or both of these precautions would have prevented the assault. North DCJ held that the owner of the Club did not breach its duty of care to the plaintiff and factual causation had not been established.
The plaintiff obtained summary judgment against Mr Gregg and his claim against the Club was dismissed.
North DCJ assessed damages against Mr Gregg in the sum of $37,111. If the Club was found to be negligent, the award of damages against it would have been $8,227.
Court of Appeal decision
The plaintiff appealed against the finding of no liability in favour of the Club and the assessment of damages as against both defendants. The Court of Appeal unanimously dismissed the appeal.
The Court noted that there was some evidence concerning the prior behaviour of Mr Gregg at the Club where he had been argumentative, however, there was no suggestion by the appellant that disciplinary action should have been taken by the Club nor that Mr Gregg had been or was likely to be aggressive or violent in the Club.
On this basis the Court upheld the trial judge’s finding that the Club’s knowledge that Mr Gregg could be argumentative and quarrelsome did not make it necessary to instruct its staff to increase their supervision of his behaviour.
The Court considered that although in some circumstances it may be necessary for an occupier of licensed premises to inform its staff of specific concerns about a patron based on past behaviour, the evidence in this case did not show that such a precaution was necessary.
The Court also rejected the appellant’s argument that the installation of a CCTV camera would have been sufficient to deter the type of conduct that occurred. Even if a CCTV camera was installed and monitored, it is not likely that this measure would have prevented the assault. There were other patrons in the outside area, so there were going to be witnesses to whatever occurred and the certainty of discovery did not deter Mr Gregg from assaulting the appellant.
The Court found that the appellant did not establish that increased supervision by staff or coverage by CCTV would have prevented the assault, which, on the evidence, occurred suddenly. In both scenarios, the appellant’s case was that either one of the staff might have intervened or the camera might have deterred Mr Gregg’s conduct. The Court affirmed that this standard is not sufficient. The appellant was required to demonstrate that these precautions would have prevented Mr Gregg from assaulting him, however the appellant failed to establish this.
The Court has reinforced that the liability of licensees will depend on a plaintiff establishing that the licensee ought to have known of facts requiring a direct intervening act, which would have safeguarded the injured person from a foreseeable risk of harm.
The decision adds to the growing weight of authority on causation in negligence to cement the place of ‘but for’ in the causation analysis, as provided for in section 5D of the Civil Liability Act 2002. Whether or not the Civil Liability Act applies, the test provides a useful starting point for determining whether a defendant’s negligence caused or materially contributed to the harm suffered by the plaintiff.
1 HCA 48; 239 CLR 420