Smith v Croote Pty Ltd [2014] NSWCA 35.

Background

The annual Lightning Ridge Easter Festival horse and goat races attract considerable crowds to the town of Lightning Ridge, NSW. Mr Smith, the appellant (and the Plaintiff in the underlying action) was assaulted by Mr Ricky Lohse (“the assailant”) (who was not a party to the proceedings) on the evening of the races in 2007.

Croote Pty Ltd (“Croote”) was the proprietor of the Lightning Ridge Hotel (“the Hotel”), one of the largest hotel’s in town, consisting of an indoor bar, a bistro, a covered beer garden and outdoor beer garden, a bottle shop, a function centre and a motel reception building with units and a car park. The hotel’s maximum capacity under its licence was for 500 people.

The second respondent, TA & EL Dunn Pty Ltd (“Dunns”) was the contracted security provider on the subject evening.

The plaintiff, Mr Smith, was a patron at the hotel on the evening.

A number of witnesses gave evidence as to the circumstances of the assault and the events leading up to the assault. What was accepted by the Court was that at some stage later on the subject evening, security approached Terry Lohse (the assailant’s father) inside the hotel’s inside bar and asked him to leave the premises as he was apparently intoxicated. It was at this stage that the assailant began arguing with security and he was then also asked to leave.

The assailant continued arguing with security and became increasingly agitated and aggressive as he was guided towards the bar’s exit to the extent that he punched and shattered the glass door leading to the beer garden area before then randomly assaulting another nearby patron.

Whilst security was distracted by assisting the assaulted patron, the assailant jumped over a fence surrounding the outdoor beer garden and ran down a path. A security guard then called the police.

Evidence from Mr Bouwmans’ (who had been with the plaintiff at the premises on the evening) was that he observed the assailant attempting to climb back over the fence shortly after he had been evicted. Mr Bouwmans’ also said that he and Mr Smith had witnessed the assailant’s eviction from the premises and his assault on the patron after he smashed the glass door.

The plaintiff and Mr Bouwmans’ left the premises to return to their motel approximately 5 minutes after seeing the assailant attempting to climb the fence. Both said that they saw the assailant and another male sitting on logs ahead of them as they exited. The plaintiff was unable to recall much immediately before the assault (given his injuries), though Mr Bouwmans’ gave evidence that he had passed to the left of the logs and the plaintiff had passed to the right of the men sitting on the logs.

An earlier statement that the plaintiff had provided to an expert was accepted into evidence. It revealed that the plaintiff had said something to the assailant as he walked passed, which was words to the effect of “who has been a naughty boy then?”, immediately before he was punched and rendered unconscious by the assailant.

The Law

At first instance, the trial judge found that there was negligence on the part of both Croote and Dunns for failing to plan adequately for the night in question- in that they had failed to:-

  • implement a system of security on the evening to accommodate for a crowd of approximately 300 people; and
  • implement a system of satisfactory communication between Croote and Dunns’ security to allow security to contact hotel staff and vice versa.

The trial judge said that it was not unreasonable for Croote and Dunns to expect a crowd of approximately 300 people as a result of the day’s events. His Honour accepted that eight security guards should have been provided rather than the four provided by Dunns and that failure amounted to negligence on the part of Dunns and Croote.

The trial judge also held that the risk of injury to patrons such as the plaintiff when an insufficient number of security guards were present was foreseeable and not insignificant and that a reasonable person in the position of Croote and Dunns would not have been guilty of such failures.1

In saying this, the trial judge held that the plaintiff failed on causation as the inadequacies in planning were not operative in causing the plaintiff’s injury as, on the night in question, it was accepted that there was only a crowd of approximately 100 people present and therefore:-

  • that four security guards was a sufficient number to handle such a crowd and any disturbance that may have occurred (including the altercation between the assailant and other patrons and security guards); and
  • the system of communication that was in place between Croote and Dunns was also sufficient for such a crowd. The trial judge also did not entertain that the plaintiff’s allegations that:-
  • had the police been called earlier, the assailant would have been caught before he jumped the fence- he was satisfied that they were called at a reasonable stage;
  • the duty of care owed by Dunns did not require the assailant to be apprehended before he jumped over the fence- he held that that duty did not extend to apprehending violent patrons; and
  • had one or two security guards been position outside the beer garden that they could have stopped the assailant’s assault on the plaintiff.

Most noteworthy, however, is the fact that the trial judge also held that the words used by the plaintiff in addressing the assailant, who his Honour said was “obviously intoxicated” were “provocative or knowingly so” (no emphasis added). Further, his Honour found that it was unsurprising that the assailant reacted as he did after being taunted by the plaintiff and that the close proximity between those words being said the plaintiff being struck was not sufficient to have allowed time to intervene even if security had been present in the area.

The Plaintiff appealed the trial judge’s finding that there was an insufficient causal connection between Croote and Dunns’ breach of duty for failing to arrange sufficient security numbers for an expected attendance of 500 patrons and the assault of the plaintiff by Ricky Lohse.

Croote also filed a notice of contention in which it asserted that the trial judge had erred in his finding that it had been negligent for planning and providing inadequate numbers of security staff.

Emmett JA handed down the leading judgment (Meagher and Ward JA’s agreeing) and discussed Croote’s notice of contention first.

His Honour accepted that there was no evidence to support an inference that Croote should have made provision for sufficient security staff in the expectation of an attendance of up to 500 patrons at that the trial judge had erred in finding that there was a reasonable expectation of up to 300 patrons on the night in question. His Honour said that the evidence was in fact that the number of patrons on the evening in question was similar to previous years and that:-

“…unless there were other factors or considerations that meant that a larger number of people were likely to attend in 2007, the same or a similar number should have been expected as had attended in the previous years.”2

The court noted the best and only evidence, that being a head count performed by one of the security guards, was that there were between 85 to 100 patrons present on the evening in question.

His Honour therefore held that the trial judge had erred in concluding that Dunns and Croote were in breach of a duty of care in not planning for numbers in excess of the numbers of those who actually attended.

Although his Honour said that, as the respondents had not breached their duty of care, it was unnecessary to deal with causation, he did note that (at [74]):-

The question of factual causation in a case such as this is not to be answered simply by pointing out that Croote and Dunns owed a duty of care to take reasonable steps to prevent a violent assault, that [the plaintiff] was the victim of a violent assault and that the damage suffered by him was the very kind of thing that the relevant duty obliged Croote to take reasonable steps to prevent. Describing his injury as the very kind of thing that was the subject of the duty owed by Crootes should not obscure the need to prove factual causation. This is not the case in which the evidence demonstrates that the taking of reasonable care would probably have prevented the occurred of injury to [the plaintiff].3

His Honour also rejected the plaintiff’s contention that his injury was caused by Croote’s failure to take steps that might have made Ricky Lohse’s actions less likely.

As to the ‘naughty boy’ statement made by the plaintiff to Ricky Lohse, his Honour said that:-

“… it was open to his Honour to conclude that the use of the words was objectively provocative and by way of a taunt. [The plaintiff’s] subjective state of mind was not relevant. Mr Smith’s challenge to the findings made by the trial judge must fail.

In dismissing the plaintiff’s appeal, the Court of Appeal awarded judgment to Croote and ordered the plaintiff to pay Croote and Dunns costs.

Implications

This decision is certainly a win for hoteliers and security providers alike.

The judgment of the Court of Appeal essentially means that hoteliers are only required to put in place more stringent security arrangements if there is some reasonable indication or evidence that the number of patrons on a particular night will exceed a level that is ordinarily expected.

Further, it also provides a clear precedent with causation that there are simply some assaults that hoteliers and security providers can not anticipate or reasonably be expected to mitigate when occurring outside of licensed premises after the patron that delivers the blow has been evicted from those premises.

For plaintiff’s, it provides a black and white warning that the court will take into account any taunting or provocation from the plaintiff when looking at causation for the failure of a security provider or hotelier to mitigate an assault on that plaintiff.