When two patrons of the Ettalong Memorial Bowling Club (the Club) did not see eye to eye and a scuffle broke out, the Club’s security was brought into question. This article looks atTilden v Gregg  NSWCA 164 and the New South Wales Court of Appeal’s decision as to whether the Club should be held liable for an assault upon a patron by another patron.
On Sunday 28 February 2010, Ross Tilden (the appellant) was assaulted by Rolland Gregg at the Club. The appellant and Mr Gregg were both members of the Club and had known each other for a number of years. At some time prior to 2001 a dispute between the 2 men occurred involving the loss of funds raised by a darts club raffle. This dispute led to Mr Gregg developing significant animosity towards the appellant, and he had previously made verbal threats towards him.
On the night of the assault, the appellant and Mr Gregg were seated at separate tables in an outside area of the Club. They had both consumed alcohol, but not to the extent that the eviction of either man or the refusal to serve them further alcohol was justified. Over a period of about 15 to 20 minutes before the assault, Mr Gregg engaged in sporadic verbal abuse of the appellant. The appellant then made an insulting remark to Mr Gregg which resulted in Mr Gregg punching the appellant in the face, causing his head to hit the brick wall behind him.
The Decision at Trial
The appellant commenced proceedings for assault against Mr Gregg and for negligence against the Club in its capacity as occupier of the licensed premises. The appellant obtained summary judgment against Mr Gregg, and his claim against the Club was determined by North DCJ on 26 May 2014.
The appellant argued that the Club owed him a duty to take reasonable care to prevent injury caused by the violent, quarrelsome or disorderly conduct of persons at the Club. He argued that in order to discharge its duty of care, the Club ought to have informed the duty manager and/or the security officer of Mr Gregg’s propensity for violence and the need to increase the frequency of their inspections of the area in which Mr Gregg was situated. The appellant also argued that a CCTV camera should have been installed in the outside area of the Club as a deterrent for violent behavior. He submitted that if these additional steps had been taken by the Club, Mr Gregg would have been removed from the premises by the Club before the assault took place, or he would have been deterred from acting as he did because of the presence of staff or the visibility of his conduct to a CCTV camera.
North DCJ accepted that the Club owed the appellant a duty to take reasonable care to prevent him being attacked by other persons who are aggressive, but found that the Club was not negligent in failing to take the further precautions that the appellant had contended for. He also found that the Club was not negligent in failing to have someone patrol the outside area more frequently, or in failing to install a CCTV camera in the outside area. North DCJ was not satisfied that if any of those precautions had been taken, the assault would have been prevented. This was because the assault itself took place in a very short space of time, and some sporadic abuse in the 15 to 20 minutes before the assault was only verbal in nature, and no other aggressive actions were made by Mr Gregg until he struck the appellant.
Accordingly, the appellant’s claim against the Club was dismissed.
The Decision on Appeal
The Court of Appeal was asked to consider whether North DCJ erred in finding that the Club had not breached its duty to take reasonable care to prevent injury from violent or disorderly conduct by patrons, and whether he had erred in finding that the appellant had not established factual causation.
The appeal was unanimously dismissed by the Court of Appeal. Although it was accepted that the Club knew that Mr Gregg could be argumentative and quarrelsome, this did not make it necessary for the Club to instruct its staff to increase their supervision of his behaviour. The Court of Appeal noted that whilst there may be some circumstances in which it may be necessary for an occupier of licensed premises to inform its staff of specific concerns about a patron based on past behaviour, that was not the case here, as there had been no evidence of any actual misbehavior by Mr Gregg at the Club prior to his assault upon the appellant.
The appellant’s argument that the installation of a CCTV camera in the outside area would have deterred the type of conduct engaged in by the appellant was also rejected. The appellant’s case was not that the camera should have been continually monitored, but rather it was argued that the presence of a CCTV camera would have been a sufficient deterrent to Mr Gregg’s behaviour. It was noted that the assault happened suddenly and in circumstances where there were other people in the vicinity of Mr Gregg and the appellant who would have witnessed the assault in any event.
The Court of Appeal concluded that the “but for” test of factual causation was not established. If more frequent inspections of the outside area by the duty manager or security officer had taken place, this would not, on the evidence, have resulted in them concluding that Mr Gregg ought to be ejected, and nor was it likely that the presence of a CCTV camera would have prevented Mr Gregg’s assault upon the appellant. The Court of Appeal observed that at its highest, the appellant’s case was that further inspections and the presence of a CCTV camera might have resulted in staff intervening or deterred Mr Gregg’s conduct, but that was not sufficient in establishing factual causation.
Impact of decision
The New South Wales Court of Appeal has affirmed the position established by the High Court in Adeels Palace Pty Ltd v Moubarak  HCA 48 that the liability of an occupier of licensed premises will only be established if it can be proved that the owner had direct knowledge of facts that required intervention and that additional precautions would have (and not simply could have) prevented the incident from occurring.