Australia: Negligence and Causation: Failure to have bouncers at the door not causative of plaintiffs being shot

Judgment date: 10 November 2009

Adeels Palace Pty Limited v Moubarak; Adeels Palace Pty Limited v Bou Najem [2009] HCA 48

High Court of Australia1

• In proving causation a plaintiff must satisfy the "but for" test of factual causation enshrined in s 5D(1) of the Civil Liability Act and demonstrate that the defendant's negligence was a necessary condition of their harm.
• Whilst the defendant was successful in this case, what steps a reasonable licensee would have taken to protect against a risk of harm to its patrons from the violent, quarrelsome or disorderly conduct of fellow patrons, turns on the facts of each case. As such this case should not be read as a charter for licensees and their public liability insurers.

Background

The defendant operated a restaurant and reception hall known as "Adeels Palace" at premises in Punchbowl. The defendant had an on-licence (restaurant) licence which permitted it to serve alcohol on the premises between midday and 4.00 am the following day.

On 31 December 2002 to 1 January 2003 the defendant held a New Years eve function which members of the public attended by payment of an admission price. In the early hours of 1 January 2003 a dispute on the dance floor erupted and came to involve a fight between one of the plaintiffs, Mr Moubarak, and Mr Abbas. Mr Abbas left the premises and returned with a gun, subsequently shooting Mr Moubarak and Mr Bou Najem.

Both plaintiffs brought proceedings against the defendant in the District Court claiming damages for negligence, or alternatively in breach of contract.

Sorby DCJ held that the defendant owed the plaintiffs "a general and wide duty...to take care to avoid injuries caused by the unlawful actions of patrons (or invitees) on the premises during the course of the evening of 31 December 2002 and early hours of 1 January 2003".

Sorby DCJ held that the defendant had breached its duty of care because its security arrangements at the time of the function fell far short of what reasonable care and skill were required in the circumstances. His Honour held that the inadequacy in the security arrangements was causative of the injuries suffered by the plaintiffs.

Damages were awarded to Mr Moubarak in the sum of $1,026,682.98 and Mr Bou Najem was awarded damages in the agreed sum of $170,000.

The defendant appealed in respect of the trial judge's findings on duty of care, breach and causation. By Notices of Contention the plaintiffs sought to uphold the judgments in their favour on the basis of a differently formulated duty of care or alternatively on the basis of liability in contract.

Giles JA delivered the major judgment and found that the defendant owed the plaintiffs a duty of care which extended to taking reasonable care to guard against injury from intoxicated, unruly or violent (including criminal) behaviour of patrons who were attending the New Years Eve function. His Honour held that as occupier of the premises, the defendant was in a position to control who entered and remained on the premises through the presence of security guards.

Giles JA held that the defendant's failure to provide licensed personnel to act as crowd controllers or bouncers at the door of the premises was a breach of duty of care owed by the defendant to its patrons. His Honour held that on the balance of probabilities, if security staff were present at the street entrance of the restaurant they would have prevented Mr Abbas from re-entering the premises and shooting the plaintiffs.

The High Court held that the imposition of a common law duty of care on the defendant could not run counter to the statutory requirements imposed on the defendant as a licensee by the Liquor Act 1982 (NSW). The High Court held that the defendant owed the plaintiffs a duty to take reasonable care to prevent injury from the violent, quarrelsome or disorderly conduct of other patrons and that this duty was consistent and supported by the duties which the Liquor Act imposes upon licensees. The duty is not absolute, it is a duty to take reasonable care.

The High Court, as it has recently done so in Turano v Sydney Water Corporation2, confirmed that the question of breach of duty must be considered in light of s 5B(1) of the Civil Liability Act. The High Court held that there was a risk that there would be violent, quarrelsome or disorderly conduct in the restaurant and that the defendant knew or ought to have known of this. The High Court also accepted that the risk "was not insignificant".

The plaintiffs alleged that a reasonable response to the risk was the provision of licensed security personnel at the entrance to the premises and security personnel within the restaurant who could intervene if any dispute broke out within the premises.

The High Court held that the question of how many security personnel, if any, should have been provided to discharge the defendant's duty depended upon a consideration of the matters referred to in s 5B(2) of the Civil Liability Act. This included a consideration of the probability that the harm would occur, the likely seriousness of the harm, the burden of taking precautions to avoid the risk, and the social utility of the activity that created the risk.

The High Court held that the trial judge's failure to consider the matters provided by s 5B of the Civil Liability Act may have been reason enough to conclude that the question of breach of duty was not properly determined at the trial phase.

The High Court stressed that whether a reasonable person should have taken precautions against a risk is to be determined prospectively, that is before the function began, not by reference to what occurred that night, and that the answer given in any particular case turns on the facts of that case as they are proved in evidence. There was no finding at trial or in the Court of Appeal that the risk there would be some altercation between patrons was foreseeable. Accordingly, the High Court held that any decision regarding the question of breach would not establish a general rule as to when or whether security personnel should be engaged by the operators of licensed premises to respond to the risk of some altercation between patrons. The High Court held that it was therefore not useful to form a conclusion as to whether breach had been proved and instead was more taken by the question of causation.

Section 5D of the Civil Liability Act prescribes the test for causation and firstly calls for the application of the "but for" test. The High Court held that the evidence at trial did not establish that the presence of security personnel would have deterred the re-entry of the gunman and that this conclusion could only be reached if it was assumed that the gunman would have acted rationally. The High Court referred to its previous decision in Modbury Triangle Shopping Centre Pty Ltd v Anzil3 where it made the point that the "conduct of criminal assailants is not necessarily dictated by reason or prudential considerations". The High Court held that Mr Abbas' conduct was neither dictated by reason or by prudential considerations. This was supported by the defendant's expert who gave evidence that "once a determined gunman is targeting a victim or victims, there [is] no guaranteed safer effective option".

In this way the High Court held that the plaintiffs failed to prove factual causation by showing that it was more probable than not that but for the absence of security personnel the shootings would not have taken place. That is, the absence of security personnel at the defendant's premises on the night of the plaintiffs' shootings was not a necessary condition of their being shot.

As the plaintiffs could not establish that the defendant's negligence was a necessary condition of their harm, the High Court then had to consider whether the plaintiffs' cases were "exceptional" ones as prescribed by s 5D(2). Section 5D(2) is triggered in circumstances where a plaintiff cannot satisfy the "but for" test and so the court is required to consider whether or not responsibility should be imposed on the negligent party for the plaintiff's harm. The High Court held that the plaintiffs' cases were not exceptional ones such that responsibility for the harm suffered by the plaintiffs should be imposed on the defendant. The High Court held that to impose such liability would not accord with established principles of causation.

Implications

• The High Court has once again provided a timely reminder that legislation is the first port of call when it comes to considering breach of duty and causation. The High Court's comments in respect of s 5B Civil Liability Act are consistent with its recent decision in Turano v Sydney Water Corporation4and the NSW Court of Appeal's approach in recent decisions such as Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Limited5 and Penrith Rugby League Club Limited t/as Cardiff Panthers v Elliot6 to the effect that in considering claims in negligence the court must make specific findings in relation to the precautions which a reasonable person in the defendant's position would have taken, having regard to the matters specified in s 5B(2) of the Civil Liability Act.
• A plaintiff must satisfy a court that the defendant's negligence was the cause of their injuries in order to discharge the onus of proof borne by the plaintiff as required by s 5D of the Civil Liability Act. This is the touchstone in determining causation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.