Orcher v Bowcliff Pty Ltd [2012] NSWSC 1088

The Facts

The Plaintiff received serious injuries when he was punched by Mr Paseka on the other side of the footpath outside the Bridge Hotel (“the Hotel”). He sued Mr Paskea directly and also the Hotel and the licensee.  

A cross claim was brought by the Hotel against the security provider.  

Mr Paseka had worked at the Hotel as a “glassie”. He was not qualified to work as a security guard. The licensee gave evidence that he saw Mr Paseka as a paying customer that night sitting at the table drinking with friends. He appeared to be in good spirits and well behaved. However, the trial Judge ultimately found that Mr Paseka was in fact working as glassie at the hotel at the material time given CCTV footage had shown Mr Paseka take a bottle from a patron, prior to the incident.  

At the time the Plaintiff had been asked to leave the hotel he had complied and there was no obvious or apparent danger or anticipated violence that the hotel security staff should have been aware of at that time.  

After the claimant had been turned out an altercation then occurred between the claimant and a woman - an altercation that has attracted one of the bouncers attention although the judge said “regrettably, not his involvement”.

This disturbance did prompt Mr Paseka however to approach the claimant and eventually strike him in what was described as a gratuitous and unprovoked attack that occurred in circumstances of the glassie being an “officious intermeddler, and without the express or implied sanction” of the hotel of the licensee.  

The claimant’s case against the hotel was that as an occupier of licensed premises carrying on a business selling liquor on the premises it directly breached its duty of care to prevent injury to patrons from the violent, quarrelsome or disorderly conduct of other persons in the vicinity of the hotel .  

The Law

After reviewing the authorities His Honour said that the following principles could be ascertained:-

  1. A hotel may owe a duty of care to take steps to protect or prevent injury to a patron of the hotel as a matter of general principle but this will depend upon the particular circumstances of each case.
  2. This duty may extend to circumstances where the wrongdoing caused injury to a person occurring in a public street. The element of control, together with the statutory obligations imposed upon the licensee and occupation of the site, is the foundation of the duty.
  3. The duty owed does not amount to a positive obligation to become a patron’s protector or guardian whenever danger outside the hotel can be reasonably apprehended.
  4. The boundary of the duty owed by the hotel to a patron is not necessarily confined to the curtliage of the hotel itself.
  5. The question of a duty of care depended upon the occupation of premises, the control involved in any occupation, any statutory responsibilities in relation to the licence or in relation to the conduct of the establishment and any assumption of responsibility.
  6. A hotel may be liable for injury to a patron or bystander caused by the deliberate and unlawful act of another patron. The duty which gives rise to this liability depends upon the capacity and the statutory obligation of the licensee to control conduct upon licensed premises pursuant to the Liquor Act.
  7. There is no statutory cause of action that arises from a breach of the Liquor Act: - rather the duty to exercise reasonable care for the safety of patrons depends upon proof that the hotel knew or ought to have known facts requiring intervention to protect patrons by taking reasonable steps to safeguard them from a foreseeable risk of harm.
  8. The existence of such a duty of care does not depend on the existence of a “special relationship” recognized by law, but on the element of control. Although the Liquor Act does not impose a statutory duty of care on licensee, enforceable by a claimant, by conferring a power of control and an obligation to exercise that power, the statue provides the basis for a finding with respect to control. This in turn attracts the common law duty of care and informs its content.
  9. A security firm contracted to provide security services to give effect to a licensee’s obligation owes a duty of care to patrons not to ensure their safety, but to take reasonable measures to protect them from foreseeable harm, including but not limited to taking steps to turn out patrons from whom violent conduct ought reasonably to have been anticipated. If a guard employed by a security company neglects his duties, that is generally the responsibility of the security company as the security guard’s employer, not of the licensee or hotel. However, the duty of the security company, is influenced by the obligation under the contract. If there is a complete delegation, then the security company’s duty will be similar to that of the proprietor, but if the company is retained only to provide specific services, its duty is not enlarged beyond prudent performance of those services.
  10. The appropriate inference to be drawn as to the duties of security personnel must take into account the general provisions of the Liquor Act pursuant to which the licensee or his employees had the power to turn out a intoxicated person using such reasonable degree of force as may be necessary.
  11. In light of the fact that the security personnel were contracted to ensure compliance with statutory obligations under the Liquor Act their duties would have included patrolling the area in the vicinity of the hotel to ensure that patrons, not limited to those turned out of the premises, did not cause nuisance or annoyance to the neighbourhood.
  12. There are circumstances under which an employer may become vicariously liable for unauthorised acts of an employee, even when those acts are criminal and even when the employer has expressly instructed the employee not to perform acts of that kind. The only explanation for such a result is that of policy. An employer is more likely to be liable for criminal acts performed by an employee in disobedience of instructs if the act complained of was not a gratuitous unprovoked attack upon a patron, was an act performed as on behalf of the employer and in supposed furtherance, or in the intended pursuit, of the interests of the employer and to which the ostensible performance of the employer’s work gave occasion.  

His Honour held the assault had nothing to do with Mr Paseka’s performance of his duties as a glass collector. Accordingly, His Honour found that he did not consider that the hotel was in any way vicariously liable for its employee’s assault upon the claimant.  

The only viable basis upon which it could be said that the hotel was liable to the claimant was that it permitted its glass collector to assault him or that it failed to take any or any reasonable steps to prevent him from assaulting the claimant.  

In the end, His Honour regarded a special condition of the license requiring the licensee to patrol in the vicinity of the premises to ensure patrons depart the hotel and the neighborhood in a quiet and orderly manner and to ensure that they did not disturb the neighborhood as determinative. His Honour held at paragraph 20 that:  

“In my opinion [the hotel] breached its duty by failing either to take steps to intervene in the disturbance in the first place or to prevent Mr Paseka from doing so himself. The timely presence of… security staff on the other side of Wellington Street when the disturbance erupted would have meant that they would have been on the scene before Mr Paseka arrived in time to quell the disturbance or would otherwise have acted as a deterrent to him joining in at all… the element of control, in this case specifically the ability to control Mr Paseka, is the foundation of the duty of care with which [the hotel] failed to comply. This is not a case of some stranger to the hotel performing acts of aggression against a patron in circumstances or in a location where [the hotel] employees were powerless to intervene”.

His Honour found that it was highly likely that the glass collectors “interest” in the interplay between the claimant and the other patron was likely to lead to an escalation of the disturbance rather than to its reduction. This is at least because the glass collector was not trained as a security guard, and was not authorized to intervene in disturbances between or among patrons.  

His Honour suggested that an alert or vigilant security guard should have reacted to prevent Mr Paseka from ever becoming involved.  

His Honour noted that on the evidence the role of the security guards was not only to deal with disturbances when they broke out but as far as possible also to anticipate and prevent them. His Honour suggests that the two security guards on the door should have been alert or sufficiently vigilant to anticipate the general likelihood that the events that occurred might occur and they should have taken active steps to prevent them. His Honour said a paragraph 211: -  

“The evidence is that they remained stationary and unmoved on the hotel side of Wellington Street, no more than mildly inquisitive and generally uninterested, observing, but not intervening, in a disturbance that they should have prevented. If the disturbance was sufficient to attract Mr Paseka to cross Wellington Street, it was sufficient in a legal sense to have required the hotel security staff to do likewise. Nor is that view based upon the notion that the hotel has some positive obligation to become Mr Ocher’s protector or guardian. The disturbance was of the kind which, according to the hotel’s security policies and the licensee’s undertakings to the Board, demanded intervention by its security staff. Timely compliance with the rules and the undertakings would have prevented the assault, or would have significantly reduced its likelihood”.

His Honour found that the security company breached their duty of care for similar reasons.  

As to causation, His Honour said that there was more than sufficient time for any of the defendants to act, and to react to the admittedly rapidly unfolding events. He said the period of approximately two and a half minutes between when Mr Paseka commences to cross the street and the assault upon Orcher was more than adequate to have permitted alert and vigilant security guards to intervene.  

His Honour found that the hotel/licensee was 70% responsible, and the security service 30% responsible. His Honour arrived at this conclusion on the basis that the security system within which all security staff at the Bridge Hotel were required to operate was designed and implemented by the hotel/licensee. They were the ones who effectively gave undertakings to the Licensing Board and who formulated the Bridge Hotel Security document. The licensee gave evidence that he expected the trained security guards to operate together as a team. His Honour thought the most significant level of responsibility for the operation of that team must be attributed to the hotel.  

Law Applied to the Facts

This is perhaps a concerning extension of liability for hoteliers for events which have arisen over a heated discussion on the other side of the hotel’s premises in circumstances where patrons have been passively and successfully evicted. His Honour seems to have been heavily influenced by three things in finding breach:

  1. undertakings given to the Administration Board of New South Wales as conditions of the liquor license;
  2. the fact that events are transpired directly in view of hotel security staff; and
  3. that the assailant was in fact an employee of the hotel at the time. Perhaps then this judgment can be confined to its own particular facts, but hotel operators and their insurers should be conscious of giving specific consideration to the terms of the hotel license when considering the scope of the hotel’s duty of care.