Hoteliers and operators of licensed premises are traditionally held at a high standard of care when it comes to the level of security required to ensure the safety of their patrons and employees. In two recent cases, hoteliers were able to successfully defend claims brought by an injured patron and security guard on the basis that the implementation of further precautions would not have prevented their injuries. This newsletter outlines those decisions.
Tidden v Gregg  NSWCA 164
Mr Ross Tilden was injured at the Ettalong Bowling Club in February 2010 when he was punched in the face by another patron, Mr Rolland Gregg. Mr Tilden and Mr Gregg were both members of the club and had a poor relationship since 2001 and Mr Gregg had made verbal threats to Mr Tilden on numerous occasions.
On the night of the incident, the bowling club arranged four staff members to monitor the behaviour of its patrons - a security officer, the duty manager and two general duties staff responsible for collecting glasses and ashtrays. It was the bowling club’s policy for staff members to report any intoxicated patrons or aggressive behaviour displayed by patrons to the duty manager and/or security officer.
On the evening of the incident, Mr Tilden and Mr Gregg were sitting at tables near each other in the outside smoking area. Mr Gregg started making sporadic abusive comments toward Mr Tilden over a period of 15 to 20 minutes. At one point Mr Gregg approached Mr Tilden’s table and, upon Mr Tilden making a verbal retort, threw a punch at Mr Tilden.
Mr Tilden brought proceedings against Mr Gregg and the bowling club. He alleged the club had acted negligently by failing to have the duty manager and/or security officer keep an eye on Mr Gregg and to increase the frequency of their inspections of the outside smoking area. Mr Tilden also argued that a CCTV camera should have been installed in the subject area which would have deterred Mr Gregg from harming Mr Tilden.
Mr Tilden’s friend, who was sitting with Mr Tilden at the time of the incident and who was also a committee member and director of the club, gave evidence that there were two prior occasions where the bowling club’s committee was notified of Mr Gregg’s ‘quarrelsome and argumentative’ nature, though there was no suggestion that he had a potential to be aggressive or violent, or that disciplinary action needed to be taken against him.
At first instance, North DCJ held reasonable care did not require the bowling club to carry out the steps alleged by Mr Tilden. He further stated that even if those precautions were taken by Mr Tilden, given the suddenness of the assault, the club’s staff would not have had sufficient time to react to the assault as to prevent Mr Tilden’s injury. The claim against the bowling club therefore failed.
The Court of Appeal agreed that the circumstances did not warrant a reasonable person in the bowling club’s position to keep a specific look out for Mr Gregg, nor was it necessary for the bowling club to install a CCTV camera as a deterrent.
As to the issue of causation, weight was given to the fact that both Mr Tilden and his friend believed the altercation would remain verbal only and did not anticipate Mr Gregg’s attack. The court held that even if the club’s staff carried out more frequent inspections of the smoking area, it was unlikely they would have concluded it was necessary to eject Mr Gregg and intervene. Similarly, the Court was not satisfied that the presence of a CCTV camera would, more likely than not, deter Mr Gregg from attacking Mr Tilden. The appeal was dismissed.
Baillie v Jackson  QDC 31
In September 2007, Mr Baillie was working as a security contractor at Victoria Point Sharks Sporting Club when he was assaulted by a guest of a wedding reception at the club. The assailant was leaving the wedding reception with another guest when he approached Mr Baillie who was standing at the front counter, shook his hand and then suddenly punched him in the face.
Mr Baillie commenced proceedings against the hotel and his employer the security company. The assailant was also criminally prosecuted and sentenced for the assault. At the criminal trial he admitted to punching the plaintiff, but stated that he had no recollection of doing so as he was adversely affected by alcohol.
Mr Baillie said he did not recall seeing the assailant earlier in the night or there being any signs of trouble before the attack. He alleged that when the assailant approached him he was extremely intoxicated and was being carried by his companion. This was contradicted by the CCTV footage, which showed the assailant leaving the wedding reception normally.
Mr Baillie alleged there were around 200 patrons that evening which warranted the club engaging a second security guard. He said he was caught completely off guard and, had there been a second security guard present, one of them could have stayed in the function room the entire time which would have increased the likelihood of the assailant’s growing intoxication being detected prior to the attack, resulting in him being more alert when the assailant approached him.
The club’s employees gave evidence that it was a very quiet night even with the wedding guests and the number of patrons overall was closer to 100. None of the club’s staff members noticed anyone particularly intoxicated or behaving in a disorderly manner. The bar attendant gave evidence that the assailant appeared to be very happy throughout the night and he found no reason to cut him off from alcoholic drinks.
The court had serious concerns regarding Mr Baillie’s credibility and accepted the club’s evidence over his with respect to the number of patrons that were present at the wedding. The court held it was reasonable for the venue to engage only one security guard that evening as they were not expecting a particularly large number of patrons.
The court found that, up until the point when the assailant was punched, there was no indication that he might be aggressive to Mr Baillie or anyone else. The court was not satisfied that, had Mr Baillie been on notice of the assailant’s intoxication, it would have allowed him to defend the attack more effectively as to avoid the assault. The claim therefore failed.
Plaintiffs often seek to assign blame to a defendant hotelier or security company by pointing to ways in which the hotelier could have ‘tightened up’ its security system. While it is incumbent that operators of licensed premises have in place a system to monitor the alcohol consumption and behaviour of its patrons, comfort can be taken in the Courts’ willingness to recognise that some assaults are so spontaneous and unpredictable, no further action of a reasonable nature could be taken to prevent their occurrence.
These decisions affirm that it is not sufficient for a plaintiff to simply argue that taking certain preventative steps ‘might’ have averted the incident. The onus is on the plaintiff to satisfy the court that taking those steps would, more like than not, have produced a materially different outcome, and that the taking of those steps in the first place was reasonable.