It’s not easy for a Publican to know how best to fulfil their duty of care to prevent injury to a Patron from a Punch thrown after a few Drinks.
Three decisions by the Courts of Appeal in NSW and Queensland provide a useful guide to what a publican needs to do to safeguard their patrons from assault and themselves from legal responsibility.
All three Courts of Appeal applied the leading decision on the publican’s duty of care, by the High Court of Australia in Adeels Palace Pty Ltd v Moubarak  HCA 48 (French CJ, Gummow, Hayne, Heydon and Crennan JJ, jointly).
The Adeels Palace decision
The incident occurred at a large and crowded New Years Eve function held at the Adeels Palace reception centre and restaurant in Punchbowl. An altercation took place on the dance floor at about 2:30 am, which led to a mêlée with punches, chairs, plates and bottles being thrown. A patron injured in the mêlée left the premises and returned with a gun, shot and seriously wounded the patron who had injured him in the altercation and one other.
The High Court formulated the liquor licensee’s duty of care in terms of the Liquor Act as:
a duty to take reasonable care to prevent injury to patrons from the violent, quarrelsome or disorderly conduct of other persons ... particularly with regard to allowing persons to enter or remain on those premises.
The High Court dismissed the claims for compensation because it decided that the cause of the injuries was criminal wrongdoing, not a breach of the duty of care. Even if Adeels Palace had provided more security in the restaurant, it was not shown that this would have prevented the injuries – only that it might have done so.
The Courts of Appeal all adopted the Adeels Palace formulation of the liquor licensee’s duty of care and decided that there was no breach of that duty of care in terms of the Civil Liability Act (in NSW sections 5B & 5D). In all cases, a punch was thrown in response to a remark by the victim.
The decision of Tilden v Gregg  NSWCA 164
The incident occurred at the Ettalong Memorial Bowling Club on a quiet Sunday night. Tilden was drinking with a friend seated at a table outside in the ‘old smoking area’. After 20 minutes of verbal abuse and niggling by Gregg, who was seated nearby, Gregg came over to Tilden who retorted ‘You only hit disabled people or women’. Gregg then ‘wallop’ punched Tilden in the face. Tilden was injured as he fell backwards and his head hit a brick wall.
The NSW Court of Appeal (Meagher JA with whom McColl JA & Macfarlan JA agreed) decided that the Bowling Club had not breached its duty of care because: (1) Gregg had no history of violent behaviour which suggested that a ‘stronger eye’ ought be kept on him; (2) the half hour frequency of the walk-through inspections by the duty manager was sufficient supervision; and (3) the installation of a CCTV camera would not have deterred the behaviour, and even if it were installed and monitored, it would not have alerted the staff to a problem because the assault came without warning.
Finally, there was no causation – it was not shown that ‘but for’ more frequent walk-throughs or the presence of a CCTV camera, the assault would have been prevented.
The decision of QBE v Orcher; Bowlciff v Orcher  NSWCA 478
The incident occurred on the street corner opposite the Bridge Hotel in Rozelle at 4:50 am on a Sunday morning, as patrons were leaving the hotel after it closed. See location photo. Relying upon images from CCTV cameras, the Court saw that the victim was felled by a ‘hook punch’ thrown by a casual employee who was ‘arguing about a girl’ with the victim.
The NSW Court of Appeal (Tobias AJA with whom McColl JA & Macfarlan JA agreed) decided that the neither the hotel nor the security company engaged by the hotel had breached their duty of care to prevent injury. Although the duty of care extended outside the licensed premises, it was not reasonable to suggest that the security guard should have crossed the street to prevent the assault because there was nothing to suggest an assault might take place, the street had traffic and they were not disturbing the neighbourhood.
The decision of Packer v Tall Ship Sailing Cruises Australia Pty Ltd  QCA 108
The incident occurred on board a licensed pleasure cruise ship hired for an all day staff Christmas party. Lunch and alcohol were served at a venue on South Stradbroke Island. After boarding for the return leg, the victim approached a ‘loud and boisterous’ group in the ship’s bar and asked them to ‘keep their language down’. Without warning, the victim was hit in the face with a ‘coward’s punch’, thrown by a member of the group in the bar, and suffered serious injuries.
The Queensland Court of Appeal (Boddice J with whom Gotterson JA & Flanagan J agreed) decided that the cruise operator had not breached its duty of care. The cruise operator had exercised reasonable care by stationing a crew member at the top of the stairs near the bar; and the group’s behaviour was not ‘quarrelsome or disorderly’ so as to warrant removal from the ship. There was no ‘inkling that the situation was either likely to or might produce violence’.
What does a publican need to do to fulfil their duty of care?
Whether the injury is sustained inside a licensed restaurant, on an outside patio in a bowling club, across the street from a hotel or on a pleasure boat, the case law shows that courts will decide that publicans have fulfilled their duty of care to prevent injury to patrons if they take these precautions:
- by having security staff at the door and elsewhere in the premises,
- by conducting regular walk throughs,
- by having CCTV cameras,
and by immediately dealing with any signs of violent, quarrelsome or disorderly conduct by removing the patron from the premises (and barring re-entry).
This duty of care is a general responsibility to prevent injury. Publicans have responsibilities to fulfil which are more specific, such as the licence conditions, RSA (Responsible Service of Alcohol), and specific responsibilities under the Liquor Act.
The Bridge Hotel, on the corner of Victoria Road (left to right) and Wellington Street (centre frame) Rozelle (in inner city Sydney). The incident occurred on the left side of Wellington Street (where the spiky plants are).