The duty of licensed premises to evict aggressive patrons

Legal Directions

Cregan Management Pty Ltd v Hadaway [2011] NSWCA 338

In this case, the New South Wales Court of Appeal held that the failure to evict aggressive patrons did not constitute a breach of a licensed premises’ duty of care.

Facts

Mr Hadaway and Mr Robinson were patrons of the Park Beach Hoey Moey Hotel. There was a history of bad blood between them. Both Hadaway and Robinson were known to the staff of the hotel and to the security guards.

Whilst attending the hotel, Hadaway and Robinson engaged in a verbal and physical altercation. Hadaway and Robinson were separated by bar staff and then went to separate areas of the hotel.

Later on the same night Hadaway and Robinson engaged in a second verbal altercation, which was quelled by both bar staff and security guards. During the second altercation, Robinson stated to Hadaway, ‘I’m going to get you… come outside, I’ll kill you’.

After the second altercation, Hadaway and Robinson remained in separate areas of the hotel for about four hours until Hadaway left the hotel.

Hadaway was assaulted by Robinson approximately 200 metres from the hotel and suffered serious injury. Hadaway brought proceedings against Robinson, the Hotel and its manager, Mr Archibald, and the security company.

District Court decision

The trial judge accepted evidence that Hadaway was ejected from the hotel at 9.30pm, and considered that the duty of care owed by the Cregan Hotel to Hadaway extended to taking reasonable care the ensure that when Hadaway was involuntarily ejected from the hotel his safety would be given reasonable consideration.

Therefore, it was held necessary for the Cregan Hotel to ensure that Hadaway was well clear of the hotel before Robinson left and that, in failing to do so, the Cregan Hotel failed to take due care for Hadaway’s safety.

NSW Court of Appeal decision

The NSW Court of Appeal found that Hadaway had not been ejected from the hotel prior to the assault, but in fact had voluntarily left the hotel. Thus, the Cregan Hotel’s liability could not stem from the reasons relied upon by the trial judge.

At trial, Hadaway had submitted that in the exercise of reasonable care for his safety, the Cregan Hotel should have ejected Robinson at the time of the second confrontation, or alternatively, ejected both Hadaway and Robinson in a controlled manner whereby they would not be left together outside the hotel.

The court considered the evidence of Mr Jennings, a security consultant, who stated that although separating Hadaway and Robinson after the first confrontation was acceptable industry practice, allowing Robinson to remain after the second confrontation was not acceptable due to the risk of conflict reoccurring within the hotel.

It was accepted that, pursuant to the decision in Adeels Palace Pty Ltd v Moubarak, the Cregan Hotel owed Hadaway a duty to take reasonable care to prevent injury from the violent, quarrelsome or disorderly conduct of other patrons.

The court considered there was a foreseeable risk of harm to Hadaway at the hands of Robinson in another confrontation at the hotel, which could not be said to be insignificant. However, when considering the reasonableness of allowing Robinson and Hadaway to remain, Giles JA emphasised that what is reasonable depended on the individual circumstances.

The court accepted that it was a reasonable response to the first confrontation to separate Hadaway and Robinson within the hotel. It was considered that the occurrence of the second confrontation could cast doubt on the efficacy of the separation, but did not exclude that course of action.

When considering the reasonableness of the Cregan Hotel’s response, importance was placed on Robinson’s request to go outside and to be thrown out. The court considered it was implicit in this statement that Robinson was not likely harm to Hadaway while they were in the hotel.

The court also took into account that, whilst the ejection of a disruptive patron is permissible, hotel patrons are entitled in general to take advantage of the hotel facilities, and that over ready ejection infringes this right.

The court concluded that it was not established that the Cregan Hotel was in breach of its duty to Hadaway in failing to eject Robinson, or Hadaway and Robinson, at the time of the second confrontation. As there was no continuing duty of the Cregan Hotel to monitor the behaviour of Hadaway and Robinson in order to ensure that protection was provided for Robinson on leaving the hotel, the Cregan Hotel had not acted negligently.

Implications

A licensed premises’ duty to protect patrons will be limited to taking reasonable care in the circumstances. What is considered ‘reasonable’ will turn on the facts, and a stereotypical approach to reasonableness cannot be applied. However, there is no prima facie duty of a licensed premises to evict an aggressive patron. This is consistent with the principles in cases such as Rooty Hill RSL Club Ltd v Karimi and Portelli v Tabriska Pty Ltd, both of which concerned similar facts to those in Cregan Hotel Management.

It is worth noting that Basten JA considered that Hadaway may have been able to succeed against the Cregan Hotel (based on the principles accepted in Karimi and Portelli) if he had been able to establish that:

  • Responsible staff in the hotel knew, or ought to have known, at the time that he left that there was a real risk of him being pursued and attacked by Robinson
  • Staff were aware that Hadaway had left the premises when he did
  • Staff were aware that Robinson knew, or was in a position to know, when Hadaway left the premises.

Thus, it appears that a court will be more concerned about a licensed premises’ knowledge of the risk to a patron, as opposed to its actions in evicting aggressive patrons (or otherwise), when considering whether a licensed premises has acted reasonably to protect patrons from the actions of other patrons.

Authored by Jessica Pendlebury, Lawyer, Brisbane.


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