New Years Eve celebrations gone wrong

10 March 2009 Topics: Insurance

The Liability of the Licensee for the Criminal Acts of Patrons

Adeels Palace Pty Limited v. Moubarak; Adeels Palace Pty Limited v. Bou Najem [2009] NSW CA 29

The courts have been busy in recent months dealing with a string of cases involving the liability of licensees for injuries caused to patrons through the criminal activities of other patrons.  This is the fourth recent such case we have reviewed in our legal alerts and the third in recent months from the New South Wales Court of Appeal. This time however alcohol did not play a prominent part.

The case involved two claimants who each successfully claimed damages (totalling almost $1.2M) against a licensed restaurant/nightclub after being shot by a patron during busy New Year’s Eve celebrations in 2003. The shooting occurred following an earlier dance floor brawl involving the would-be gunman. Following the brawl the would-be gunman left the premises before returning with a gun which he then discharged.

The gunman was able to freely re-enter the premises due to there being no security staff at the entrance to the premises.  Had there been security it would have been apparent to them that the gunman had blood running down his face from the earlier brawl.  Whether security would have seen the gun is unknown. The premises did have 10 CCTV cameras in place but they were not monitored.

There had been eight police incidents, three involving firearms, in the vicinity of the premises in the preceding four years which the court thought shed some light on the nature of the establishment and its likely patrons. This dictated, in the court’s view, that a security officer be stationed at the front door to prevent re-entry of unruly patrons and the absence of a guard amounted to a breach of duty on the part of the licensee.

The licensee argued that security may not have been able to stop the gunman, particularly if the gunman had turned the gun upon them.  Whilst acknowledging that argument, the court found that on balance the trial judge was entitled to regard the use of force against the security staff as quite unlikely and to conclude that security would have had a successful deterrent or preventative effect.  As such, the shortfalls with security significantly contributed to the injury occurring.

Again the court highlighted the element of control a licensee has over what occurs on their premises as critical to establishing the duty of care. This meant the licensee had a duty of care to protect patrons in relation to violent behaviour whether from intoxication of a patron or otherwise. Intoxication was found to be a common cause for intervention but not essential to create the duty of care.

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