CASE NOTE: Adeels Palace Pty Ltd v Moubarak
Two male guests at a New Year's Eve
function in a restaurant/reception centre were shot by another
guest following an altercation between the shooter and one of the
two injured men. The injured guests were successful in suing the
reception centre in the NSW Supreme Court and received a
substantial award of damages. However, following appeals by the
reception centre, the matter came before the High Court this
month.
The issues for determination by the
High Court were:
- Did the reception centre owe the plaintiff a duty of care to
prevent harm of the kind suffered?
- Did the reception centre breach its duty of care?
- Was the breach a cause of the damage suffered by the injured
guests?
The reception centre argued:
- It owed no duty to those attending its premises to prevent
criminal conduct by third parties.
- If it did owe some relevant duty of care to its patrons, it was
not shown that the reasonable response to the risk of violent
behaviour would have been to employ security staff.
- It was not shown on the evidence that the want of licensed
security personnel was a cause of the shooting.
The High Court held:
- The question of the existence of a duty of care must be
considered in the context of the liquor licensing legislation to
ensure that the imposition of a common law duty of reasonable care
of the kind in question would not run counter to the statutory
requirements. The High Court noted the liquor licensing legislation
in all states makes provision for licensees to remove, or prevent
from entry, violent or quarrelsome persons and imposes requirements
about the service of alcohol and conduct of persons on the
premises.
- The reception centre owed the plaintiff a duty to take
reasonable care to prevent injury to patrons from the violent,
quarrelsome or disorderly conduct of other patrons. This duty is
consistent with liquor licensing legislation requirements.
- Although the duty is directed to controlling the conduct of
patrons (for the avoidance of injury to other persons), it is a
duty to take reasonable care in the conduct of activities on
licensed premises, particularly with regard to allowing persons to
enter or remain on those premises.
- The possibility that guests would be violent or quarrelsome was
not insignificant. The question thus, in determining any breach of
duty, becomes whether a reasonable person in the position of the
reception centre would have taken precautions that the plaintiff
alleges should have been taken - providing security personnel at
the premises.
- Whether any security was required to satisfy the duty of care
imposed on the reception centre depends upon the considerations set
out in the New South Wales Civil Liability Act (which is based on
the common law), including the following:
• probability that the harm would occur;
• likely seriousness of the harm;
• burden of taking precautions to avoid the risk;
and
• social utility of the activity that created the
risk.
- In determining what measures a defendant ought to have had in
place to satisfy the requirements of the duty of care, many
different matters need to be taken into account, including the
number of patrons expected at the premises, the atmosphere that
could reasonably be expected during the function and whether there
has been any suggestion of violence at similar events.
- Importantly, these factors need to be considered prospectively,
not with the wisdom of hindsight.
- In the Supreme Court, it was accepted it was sufficient to find
the failure to provide security was a breach of the duty of care
owed by the reception centre. This position could only be reached
if a reasonable person in the position of the reception centre
would have employed security personnel as a result of the
probability of unruly patrons who had left the premises returning
to do violence. The Supreme Court did not clearly articulate why a
reasonable person would have taken that step.
- There was nothing in the evidence to demonstrate before the
shooting that security was needed. The court noted the numbers of
people attending the reception centre and the type of customers
(spread over a range of ages, with some in family or friendship
groups, extending over several generations) did not demonstrate a
need for security personnel to control access to the premises.
- There is always a risk of some altercation between patrons at
almost any event and the risk is higher if the patrons are
consuming alcohol but, unless the risk to be foreseen was a risk of
a kind that called for, as a matter of reasonable precaution, the
presence of security personnel to deal with it safely, failure to
provide security of that kind would not be a breach of the relevant
duty of care. In the present case, no finding of a risk of that
kind should have been foreseen.
-
From a causation point of view, there was no evidence that the
shooter would have been deterred by the presence of security. The
submission by the injured guests that their injuries were caused by
the reception centre's failure to take steps that might have made
the shooting less likely, should be rejected. It was not shown that
an absence of security materially contributed to their
injuries.
Motor Vehicle Claims: Foreseeable Consequences
As a result of a collision between a motor vehicle and a tram, the
tram operator, Metrolink, claimed from the driver of the motor
vehicle who was at fault, the performance penalties which it was
obliged to pay to the Director of Public Transport under its
franchise agreement because of the delays caused to the running of
the tram system. Metrolink claimed the economic loss totalled
approximately $7,000.
Initially, the magistrate dismissed Metrolink's claim. The
magistrate observed the claimed loss would not be reasonably
foreseeable because it was not only unlikely but also far-fetched.
The magistrate noted it was a kind of damage that would not occur
to a reasonable person in the position of the negligent driver.
Metrolink appealed the decision to a single judge of the Supreme
Court. The judge dismissed the appeal and upheld the magistrate's
decision.
Metrolink appealed again, this time to the Court of Appeal, which
found in favour of Metrolink in a 2-1 judgment.
The Court of Appeal held:
(i) Although the precise means by which Metrolink's claimed
economic loss was to be calculated may not have been known to the
negligent driver, the loss fell within a class of damage which, if
categorised correctly, was foreseeable. The performance payment
penalty which Metrolink was obliged to pay can be seen as part of
the system of remuneration payable to Metrolink for the operation
of the tram system.
(ii) The magistrate erred in defining too narrowly the quantum of
loss Metrolink suffered. The appropriate categorisation was simply
one which required foreseeability of 'revenue lost as a result of
the inability to operate the tram service'.
(iii) In answer to the question of whether the loss of revenue as a
result of the inability to operate the tram should have been
foreseeable to the negligent driver, the court considered that one
needed to consider whether there was a real risk - one which would
occur to a reasonable man in the negligent driver's position and
which he would not brush aside as far-fetched.
(iv) It is in no way far-fetched that the collision, causing an
inability to operate the tram, might result in a loss of
revenue.
The decision is instructive when analysing the extent to which
compensable economic losses may flow from an incident of property
damage. In the course of the hearing, the negligent driver conceded
that a claim for the loss of fares was foreseeable. However, the
judgment makes clear that Metrolink's economic loss extended beyond
the loss of fares.
The judgment is likely to lead public and private corporations to
include, in their claim for damages, claims for financial losses
demonstrably incurred as a direct result of the property damage
suffered.
CASE NOTE: C A L No 14 Pty Ltd v Scott
The High Court has recently considered whether a publican had a
duty to take reasonable care to prevent an intoxicated patron
riding his motorcycle home.
The patron and the publican had agreed that the keys to the
motorcycle the patron had ridden to the hotel would be held by the
publican and the patron's wife would be called to give her husband
a lift home when he was ready to leave. When the patron decided to
leave he refused the publican's offer to call his wife and
proceeded to ride his motorcycle. Unfortunately, he lost control of
his motorcycle and was killed.
The court considered that in the circumstances no relevant duty of
care was owed to the patron. The Full Court of the Supreme Court of
Tasmania had previously identified the relevant duty to be one to
take reasonable care to prevent the patron from riding his
motorcycle when he was so affected by alcohol that he had a reduced
capacity to ride safely. In the High Court it was argued that the
relevant duty obliged the publican to ring the patron's wife so she
could come and give him a lift home.
The High Court did not accept that the publican owed such a duty to
the patron, or that there was any breach of duty, or that as a
matter of causation the actions of the publican had caused the
accident.
Significantly, the High Court took the opportunity to state that
while people in the position of a publican, although bound by
important statutory duties in the service of alcohol and conduct of
the premises where it is served, owed no general duty of care at
common law to customers which requires them to monitor and minimise
the service of alcohol or to protect customers from the
consequences of the alcohol they choose to consume.
The majority of the High Court also considered the question of the
duty of care of publicans to persons other than their customers.
The court noted that some of the arguments against imposing a duty
of care on publicans to their customers may have less application
where the plaintiff is a third party injured by a customer. The
court declined to make any pronouncement on this issue, suggesting
that the discussion must be left to a case raising the issue.
For more information, please contact:
Joe Naccarata, Partner
Phone (direct): +61 3 9608 2215
Email:
j.naccarata@cornwalls.com.au
or
Justin Evans, Senior Associate
Phone (direct): +61 3 9608 2217
Email:
j.evans@cornwalls.com.au