Beyond the front door – liability of the hotelier

03 March 2009 Topics: Insurance

Rooty Hill RSL Club Ltd v. Karimi [2009] NSWCA 2
Portelli v. Tabriska Pty Ltd & Ors [2009] NSWCA 17

Last month we featured a recent decision in which an hotelier was found liable to an intoxicated patron who was injured after he had left the hotelier’s premises. This month the story continues…

The two cases featured this month have some striking similarities about them: In both the claimants were assaulted shortly after they had been evicted from the hotelier’s premises following an earlier altercation between the claimants and their would-be attackers within the hotelier’s premises.  In both the attackers were intoxicated but the claimants were not.  In both the claimants and their would-be attackers were evicted from the hotelier’s premises via separate entrances following standard security practice.  In both the claimants were only evicted after security were satisfied that the would-be attackers posed no ongoing threat to the claimants.  Both claimants sued the hotelier and their security staff.  Ultimately both claimants met the same judicial fate – judgment for the defendant, although initially the one claimant was successful.

Had the claimants sued their attackers, there is no doubt they would have been successful. The financial resources of the attackers may have dictated why they were not pursued.
In both cases it was argued for the claimants that it was reasonably foreseeable that there would be a further attack upon the claimants given earlier events.  In the one case it was argued that the departure of both evictees should have been significantly staggered by time delay and the claimant should have been escorted to their car.  In the other it was suggested, inter alia, that the police ought to have been called and/or the claimant should have been prevented from leaving the hotel until any danger had passed.

In finding for the defendants the court recognised that as a general rule, hoteliers may be liable for the tortious or criminal conduct of patrons resulting from control exercised by the hoteliers over patrons and their knowledge or ability to know the intoxicated conditions of patrons.  However the fact of intoxication is not enough – there must be knowledge, actual or constructive, of the aggressive character of a patron when intoxicated.  The court also recognised that an hotelier’s duty to take reasonable care to protect a patron from an assault by an intoxicated aggressor may not come to an end upon eviction.  The difficulty for the claimants in both cases was that the court found it was reasonable for security to have formed the view that the attacker posed no ongoing threat to the claimant, despite their intoxication and earlier conduct.  Had a threat of attack existed the court found that it may have been prudent to call the police but it did not necessarily mean there was a legal duty to do so or that the hotelier became the claimant’s guardian.

As always, the extent of the duty will be dictated by the particular circumstances.  There will always be a point in time and place where the hotelier’s chain of responsibility for a patron will be broken.

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