Nightclubs owe visitors a duty of care in respect of the actions of third parties on their premises; in this case there had been no breach of this duty.
In October 2002 the Claimants were at the Met Bar, a private members’ nightclub owned by the Defendant, when they were attacked by Cecil Croasdaile. One of the waitresses, Ms Kotze was kicked or tapped on the bottom by one of the group in which they were standing. This was witnessed by a long standing member, Mr Balubaid, who later that evening asked the waitress to put Mr Croasdaile’s name on the guest list. Mr Croasdaile arrived later and his demeanour caused the waitress to become concerned about a possible confrontation between Mr Croasdaile and the Claimants. The waitress went to speak with the bar manager and whilst doing so the confrontation took place. The claim failed at first instance.
The Court of Appeal, in dismissing the Claimants’ appeal, considered the threefold test for establishing a duty of care expounded by the House of Lords in Caparo Industries plc v Dickman :
- Proximity of the relationship: the relationship between the management of a nightclub and its guests was of sufficient proximity to justify the existence of a duty of care.
- Foreseeability of injury: this will vary depending on the nature of the establishment. In this case, Comojo could not argue the risk of an assault was so low that it could safely be ignored.
- Fair, just and reasonable: it was fair, just and reasonable to impose a duty of care on the management of a nightclub in respect of injuries caused by third parties, provided that the scope of the duty was appropriately set.
Accordingly, Lady Justice Smith held that there was a duty of care owed by the management of a club in respect of the actions of third parties on the premises. In this particular case however, Comojo had not been in breach of that duty as at the time the waitress went to speak to her manager, there was no reason to think that a confrontation was imminent.
Although this claim was unsuccessful, the judgment will be of concern to nightclubs, hotels and insurers. It allows claimants injured by the actions of third parties on their premises, to argue that the establishments were in breach of their duty of care. The precise extent of that duty, and the measures they will need to take to protect themselves from such claims, will vary depending on the nature of the establishment in question.
In view of this decision, it would be sensible for nightclubs and hotels to review the adequacy of their security arrangements with reference to the likelihood of violence. It should be noted that Smith LJ commented that “it will be a rare night club that does not need some security arrangements which can be activated as and when the need arises”.