On 25 June 2015, HopgoodGanim Lawyers’ Insurance and Risk team published an alert discussing the outcome of an appeal in the Queensland Court of Appeal for damages in negligence against a boat cruise operator for injuries suffered by the plaintiff on a Christmas party cruise (see “Plaintiff fails on appeal against boat cruise operator for injuries arising from third party assault”).  A recent decision of the NSW Court of Appeal has applied a similar common sense approach in relation to an assault by a fellow member at a bowls club.

In the following Alert, Senior Associate Jacqi Marshall and Solicitor Melissa McGarrity discuss the dismissal of the plaintiff’s appeal in the NSW Court of Appeal decision of Tilden v Gregg [2015] NSWCA 164, upholding the original decision of the NSW District Court.

The facts

The plaintiff alleged that, while attending as a patron at the Ettalong Memorial Bowling Club (the Club), he suffered injuries to  his spine, face and mouth and an aggravation of psychological condition, after being punched in the face by a Mr Gregg in February 2010. The assault occurred after a short period of verbal abuse by Mr Gregg which was met by an offensive response by the plaintiff.

The plaintiff sought damages from the Club in negligence and from Mr Gregg for assault.  The plaintiff succeeded against Mr Gregg but failed against the Club.  The plaintiff appealed the decision on liability in relation to the Club and the assessment of damages against the Club and Mr Gregg. 

The appeal

The plaintiff appealed that decision on the basis that the Club owed him a duty to take reasonable care to protect him from violent, quarrelsome and disorderly conduct of persons at the Club. The plaintiff argued that in failing to increase the inspections and walk-throughs in the Club, as well as the failure to install  CCTV cameras in the area, the Club breached its duty of care to the plaintiff.  He argued that these measures would have identified Mr Gregg’s behaviour or acted as a deterrent to Mr Gregg’s assault. Further it was submitted the Club was aware of previous quarrels between the plaintiff and Mr Gregg, and that Mr Gregg had a history of violence in the past.

The decision

It was upheld on appeal that due to the nature of the incident, whereby the assault on the plaintiff took place following a period of aggression exhibited by Mr Gregg lasting approximately 20 minutes, that an increase in patrols of the area by staff was unlikely to have prevented the assault by Mr Gregg. It was noted that the aggression displayed by Mr Gregg to the plaintiff was intermittent and, even if the patrols were increased, the aggression may not have been witnessed by staff or security. Further, on the basis that there were several other patrons present at the time of the assault, the court held that CCTV cameras would have had little effect as a deterrent to Mr Gregg.

As was the case in our previous Alert, the Court of Appeal referred to the High Court’s decision in Adeels Palace Pty Ltd v Moubarak (2009) CLR 420 (Adeels), which found that the relevant duty was to take reasonable care in the conduct of activities on licensed premises, which duty was not absolute.  In Adeels, the High Court held that:

unless the risk to be foreseen was a risk of a kind that called for, as a matter of reasonable precaution, the presence or crowd controllers to deal with it safely, failure to provide security of that kind would not be a breach of the relevant duty of care.”

Adeels was applied in the current appeal, as “at its highest the appellant’s case was that those inspections might have resulted in one of the staff intervening. That is not sufficient” [33].

The Plaintiff also appealed the assessment of damages on the basis that the award did not take into account what were said to be the significant injuries suffered by the plaintiff, and that the trial judge failed to take into account the plaintiff’s explanations for matters shown on surveillance. Further the plaintiff argued that aggravated and exemplary damages should have been awarded.  The Plaintiff’s submissions on those matters were dismissed.

Key points

  • Not every licensed premises requires crowd controllers or CCTV and whether such measures are necessary depends on a variety of factors, such as the nature of the function, the time of the function, the age and profile of the patrons in attendance, as well as patron numbers.
  • Where witnesses are present, CCTV at a premises will not be considered to be an ultimate deterrent.
  • Arguments regarding increased patrols are only likely to succeed where there is a realistic prospect those patrols could result in successful prevention of an act.
  • It is not sufficient for a plaintiff to point to the additional preventative steps that the defendant could have taken if they cannot satisfy the court that the proposed measure would have prevented the injury.