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The Publican, the Patron, the Drinks and the Punch

The Publican, the Patron, the Drinks and the Punch
July 12, 2015

Tourism and leisure industry lawyer Anthony J Cordato highlights how it is not easy for a publican to know how best to fulfil their duty of care to prevent injury to a patron from a punch thrown while having a few Drinks.

Three decisions by the Courts of Appeal in NSW and Queensland provide a useful guide to what venues serving alcohol need to do to safeguard their patrons from assault and themselves from legal responsibility.

All three Courts of Appeal applied the leading decision on the publican’s duty of care, given by the High Court of Australia in Adeels Palace Pty Ltd v Moubarak [2009].

The Adeels Palace decision
The incident occurred at a large and crowded New Years Eve function held at the Adeels Palace reception centre and restaurant in Punchbowl in Western Sydney. An altercation took place on the dance floor at about 2:30 am, which led to a mêlée with punches, chairs, plates and bottles being thrown. A patron injured in the mêlée left the premises and returned with a gun, shot and seriously wounded the patron who had injured him in the altercation and one other.

The High Court formulated the liquor licensee’s duty of care in terms of the Liquor Act as “a duty to take reasonable care to prevent injury to patrons from the violent, quarrelsome or disorderly conduct of other persons ... particularly with regard to allowing persons to enter or remain on those premises.”

The High Court dismissed the claims for compensation because it decided that the cause of the injuries was criminal wrongdoing, not a breach of the duty of care. Even if Adeels Palace had provided more security in the restaurant, it was not shown that this would have prevented the injuries – only that it might have done so. 

The Court of Appeal decisions all adopted the Adeels Palace formulation of the liquor licensee’s duty of care and decided that there was no breach of that duty of care in terms of the Civil Liability Act.

The decision of Tilden v Gregg [2015] 
The incident occurred at the Ettalong Memorial Bowling Club on the NSW Central Coast on a quiet Sunday night. Tilden was drinking with a friend seated at a table outside in the ‘old smoking area’. After 20 minutes of verbal abuse and niggling by Gregg, who was seated nearby, Gregg came over and Tilden said ‘You only hit disabled people or women’. Gregg then ‘wallop’ punched Tilden in the face. Tilden was injured as he fell backwards and his head hit a brick wall.

The NSW Court of Appeal decided that the Bowling Club had not breached its duty of care because: 

1. Gregg had no history of violent behaviour which suggested that a ‘stronger eye’ ought be kept on him; 
2. The half hour frequency of the walk through inspections by the duty manager was sufficient supervision; and 
3. The installation of a CCTV camera would not have deterred the behaviour, and even if it were installed and monitored, it would not have alerted the staff to a problem because the assault came without warning. 

Finally, there was no causation – it was not shown that ‘but for’ more frequent walk-throughs or the presence of a CCTV camera, the assault would have been prevented.

The decision of QBE v Orcher; Bowlciff v Orcher [2013] 
The incident occurred on the corner opposite the Bridge Hotel in Rozelle in Sydney’s Inner West at 4:50 am on a Sunday morning, as patrons were leaving the hotel when it closed. See location photo. Relying upon images from CCTV cameras, the Court saw that the patron was felled by a ‘hook punch’ thrown by a casual employee, while ‘arguing about a girl’ with a patron.

The NSW Court of Appeal decided that the neither the hotel nor the security company engaged by the hotel had breached their duty of care to prevent injury. Although the duty of care extended outside the licensed premises, it was not reasonable for the security guard to cross the street to prevent the assault because there was nothing to suggest an assault might take place, the street had traffic and they were not disturbing the neighbourhood. 

The decision of Packer v Tall Ship Sailing Cruises Australia Pty Ltd [2015] 
The incident occurred on board a licensed pleasure cruise ship hired for an all day staff Christmas party. Lunch and alcohol were served at a venue on South Stradbroke Island. Boarding for the return leg commenced at 3pm. The victim approached a ‘loud and boisterous’ group in the ship’s bar and asked them to ‘keep their language down’. Without warning, the victim was hit in the face with a ‘coward’s punch’, thrown by a member of the group in the bar, and suffered serious injuries.

The Queensland Court of Appeal decided that the cruise operator had not breached its duty of care. The cruise operator had exercised reasonable care by stationing a crew member at the top of the stairs near the bar; and the group’s behaviour was not ‘quarrelsome or disorderly’ so as to deserve removal from the ship. There was no ‘inkling that the situation was either likely to or might produce violence’.

What does a publican need to do to fulfil their duty of care? 
Whether the injury is sustained inside a licensed restaurant, on an outside patio, across the road from a hotel or on a pleasure boat, the case law shows that courts will decide that publicans have fulfilled their duty of care to prevent injury to patrons if they take these precautions:

• By having security staff at the door and elsewhere in the premises, 
• By conducting regular walk throughs, 
• By having CCTV cameras, and 
• By immediately dealing with any signs of violent, quarrelsome or disorderly conduct by removing the patron from the premises (and barring re-entry).

This duty of care is a general responsibility. Publicans have other responsibilities to fulfil which are more specific, such as licence conditions, RSA (Responsible Service of Alcohol), and other specific responsibilities under the Liquor Act.

Cordato Partners Lawyers are experts in tourism law, specialising in providing a full range of legal services to the travel, leisure and hospitality industries. Anthony Cordato can be contacted on 02 8297 5600, E: ajc@travelsmartlawyer.com.au

Images included for illustrative purposes only.

19th May 2015 - PERISHER BLUE ESCAPES LIABILITY FOR SKIER’S INJURY BUT NEEDS A NEW DISCLAIMER

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10th November 2014 - ALCOHOL-FUELLED ASSAULTS - WHAT SHOULD A HOSPITALITY PROVIDER DO?

16th September 2014 - FOOTY BRAWLS PUT FOCUS ON SECURITY AND ALCOHOL MANAGEMENT AT COMMUNITY SPORTS GROUNDS


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