By Louise Cantrill, Partner, Matthew Skelly, Senior Associate, and Dinithi Katupitiya, Lawyer

The duty of care owed to patrons by venue operators and contracted security guards can be affected by several factors, including a venue’s history of violence. In the case of Bondi Beach Foods, the history of the venue was a relevant factor to be taken into account when assessing breach of duty, but the duty can be met if sufficient steps are taken to address that risk, such as employing adequately trained and licenced security guards who are authorised to use physical force to evict the assailant under the Liquor Act 2007 (NSW).

Background

Clinton Chadwick arrived at the Bucket List Hotel (Venue) at about 6:00pm on 22 December 2017. As he arrived, he had a verbal interaction with another group of patrons, including a Mr Martin who was alleged to appear rather intoxicated. The interaction was viewed by two RSA Marshalls from Crossguard Group Pty Ltd (Crossguard); however, they did not see cause to intervene and did not hold authority to escort patrons from the venue.

The night continued, and Mr Chadwick once again found himself in the vicinity of Mr Martin. A verbal altercation ensued and quickly escalated. Mr Chadwick pushed Mr Martin, which prompted Mr Martin to throw a jug towards Mr Chadwick. The altercation continued to escalate and ended with Mr Martin picking up a stool and using it to repeatedly hit Mr Chadwick. As a result, Mr Chadwick sustained serious injury (Subject Incident).

Mr Chadwick commenced proceedings in the Supreme Court of New South Wales against Bondi Beach Foods, the owner and operator of the Venue, and the security contractor, Crossguard. Mr Chadwick claimed that Bondi Beach Foods and Crossguard breached their duty of care on the following grounds:

1. That the group including Mr Martin were showing clear signs of intoxication before the subject incident and ought to have been removed from the venue.
2. That had there been sufficient licensed security guards, rather than RSA Marshalls, present to intervene at the time of the Subject Incident, Mr Chadwick would not have sustained injuries.

In the first instance, both the above claims for breach of duty of care were successful and Bondi Beach Foods and Crossguard were held equally liable to Mr Chadwick (Primary Judgement).

Appeal

Both Bondi Beach Foods and Crossguard appealed the Primary Judgment, against the findings of breach, causation, damages, and contributory negligence. Crossguard additionally appealed on the assessment of apportionment of liability which was unsuccessful.

The Court of Appeal confirmed the duty of care owed by Bondi Beach Foods and Crossguard was to take reasonable steps to prevent “physical injury from an intoxicated person”.

The Court of Appeal also confirmed the current law, being it is difficult to point to precautions which could reasonably be taken by a licensee (or security guard) to address the risk posed by a patron who manifests no signs of intoxication or anti-social behaviour, but who nevertheless is intoxicated, and who might, without warning, inflict harm on another patron.

As to the precautions against Mr Martin, it was accepted that despite Mr Martin’s group displaying signs of intoxication prior to the incident, the Court of Appeal accepted the evidence that Mr Martin himself did not appear so affected.  As such, had the group been asked to leave the Venue, it was not necessary that Mr Martin himself your have been subject to that direction, or would have chosen to do so.  Therefore, it was accepted that precautions taken against Mr Martin directly would not have avoided the incident.

Breach was found, however, against both Bondi Beach Foods and Crossguard, as result of the evidence called in relation to the Venue’s history of violence, and heavy drinking taking place on the date of the Incident.  Accordingly, the Court of Appeal found both defendants/appellants breached their duties of care, in failing to have at least two licensed security guards rostered on:

1. Bondi Beach Foods’ breach was in it having failed to ensure sufficient security to address the likely risk of physical violence at the Venue; and
2. Crossguard’s breach was found in it having provided guards with only RSA qualifications, who were not sufficiently skilled and/or expert in and/or authorised to undertake crowd control to address antisocial behaviour, despite Crossguard being aware of the violent history of the Venue.

Despite the Court finding against the defendants, the Court of Appeal increased the Primary Judgment assessment of contributory negligence from 20% to 50% as a result of Mr Chadwick having initiated the altercation.  Mr Chadwick’s damages for economic loss were also reduced. In finalisation, the Court of Appeal entered judgment in favour of Mr Chadwick in the amount of $112,941.50.

What Does this Mean for You?

The decision confirms the duty of care for licenced venues and security contractors to take precautions against the actions of patrons directly is limited, and precautions are only required should there be overt signs of aggressive or quarrelsome behaviour.

The decision expands the scope of the duty owed by licenced venues and security contractors generally.  Courts can now take into account factors which are seemingly unrelated to the incident at hand, such as a venue’s prior history of violence.  However, to establish breach, the history must be known (which is more difficult for a security contractor) and the risk can be addressed by the provision of “sufficient” licenced security guards.

This case is an ample reminder that history matters and that measures for sufficiently qualified security must be considered by both a venue’s operator and the contracted security.