…. Duty of care – occupier of licensed premises and obligation to provide adequate security contractors – contributory negligence
The Plaintiff was seriously injured when he was assaulted by another patron at a licensed premises (Bucket List).
He brought a claim against the occupier of the premises and the company (Crossguard) who had been engaged by the occupier to provide security.
At trial, the Plaintiff succeeded in his claim against both Defendants on the basis that his assailant and friends were showing signs of intoxication before the Plaintiff’s arrival at the venue and the Defendant had failed to evict him, and secondly, on the basis that there were insufficient licensed security guards and had there been a greater number of qualified guards, they could have intervened and de-escalated the situation.
The Plaintiff had been found to be contributorily negligent to the extent of 20 per cent as a result of his actions inflaming the situation.
At trial, both Defendants had been found equally liable. Both Defendants appealed the findings of breach, causation, damages and contributory negligence whilst the Plaintiff cross-appealed on damages.
Plaintiff’s appeal on damages dismissed.
Defendants’ appeal on breach of duty dismissed.
Defendants’ appeal on contributory negligence upheld – contributory negligence increased to 50 per cent.
Judgment entered for the Plaintiff in a sum of $112,941.50 plus costs.
Delivered on 9 November 2023, Gleeson JA, Leeming JA and Payne JA.
It was found there was no evidence or no sufficient evidence that the assailant of the Plaintiff and his group were intoxicated before his arrival at the venue and accordingly, the finding of liability on the basis that they ought to have been evicted was overturned.
It was, however, found that it was a breach of duty by both Defendants to fail to have at least two licensed security guards on duty at the relevant time.
The venue had a history of violence and intoxication of patrons and the fact that none of the security personnel provided by Crossguard were, in fact, licensed security guards (and therefore entitled to use physical force and to physically evict patrons) was a breach of duty.
They provided four (rather than five) staff none of whom held the appropriate licence to be able to evict a patron and this was found to have been a breach of duty. The challenge to causation was not made out.
It was found, however, that the Plaintiff had escalated the dispute by pushing his assailant and then returning to his assailant’s group with a view to attempting to strike him.
The Plaintiff’s conduct clearly escalated the altercation and this materially contributed to him being assaulted. Had he not acted in this way, he probably would not have been injured. Contributory negligence set at 50 per cent.