"Nature and content of duty owed by occupier of a hotel to its patrons injured by deliberate acts of third parties" - Wagstaff -v- Haslam [2007] NSWCA 28
Author: Susan Hill   
Judgment Date: 26 February 2007
Jurisdiction: NSW Court of Appeal
In Brief
  • Consideration of the nature and content of the duty of care owed by an occupier of a hotel to its patrons.
  • Whether the duty extends to protection against deliberate wrongful acts of third parties.
  • Consideration of the circumstances in which an occupier of licensed premises owes a duty to remove an intoxicated person for the protection of other patrons.
Background
  • These proceedings arose out of an altercation between the plaintiff’s husband and two other patrons at the Greenhouse Tavern, Coffs Harbour.
  • The plaintiff intervened to assist her husband and suffered injuries as a result.
  • There were three staff on duty, being the bar manager and two barmaids. 
  • The two assailants had been drinking all afternoon.  
  • There was evidence that the bar manager was aware of the presence of the two men and that they had been drinking beer and later scotch since early afternoon.  Shortly prior to serving their last drinks, he decided they had had enough to drink.  He described them as “moderately affected by alcohol”.  He did not however identify any aspect of their behaviour as aggressive or causing him concern for the safety of other patrons.
  • Other patrons who gave evidence said there had not been any boisterous or rowdy behaviour on the night in question.
  • The point at which the bar manager may have become aware of the level of intoxication and aggression being displayed by one of the men was when he approached to take a broken glass.  The plaintiffs alleged the man had smashed the glass deliberately and that it was act of aggression.  The bar manager considered it was an accident.
  • The plaintiff and her husband brought proceedings against the licensee of the Greenhouse Tavern and the occupier of the premises.
Decision of Trial Judge
  • Studdert J in the Supreme Court found the defendants owed the plaintiffs a duty of care.  His Honour noted that an occupier may owe a duty where the complaint concerned the occupier failing to control access to or continued presence on the premises.
  • In considering the existence and scope of the duty of care owed, the trial judge took into account s 2A of the Liquor Act 1982 (NSW) which identified as a primary object the minimisation of harm associated with the misuse and use of alcohol.  The Liquor Act also empowered a licensee to remove from licensed premises any intoxicated person.
  • His Honour found the defendants owed the plaintiffs a duty to exercise reasonable care for their safety whilst they remained lawfully on the hotel premises.  The content of the duty included taking reasonable measures to safeguard the plaintiffs from foreseeable risks of harm arising from the conduct of intoxicated or unruly patrons on the hotel premises.
  • His Honour did not accept that the defendants were negligent in not having adequate security on duty at the time of the altercation.
  • The plaintiffs submitted the defendants were negligent in continuing to serve alcohol to the men.  They argued the bar manager ought to have required the two men to leave when one of the men brandished a broken glass.  
  • His Honour considered the men’s insobriety should have been obvious to the bar manager.  Furthermore, the bar manager ought to have declined to serve the two men their last round of drinks or alternatively removed them from the premises.
  • The issue was whether the supply of further drinks and the failure to request the men to leave involved a breach of the duty of care owed to other patrons.
  • His Honour found there was a foreseeable risk of injury to the plaintiffs because the intoxicated patron held a broken glass in his hand in a threatening manner and because the man and his companions had earlier misbehaved.
  • Both plaintiffs were successful, Mr Wagstaff’s damages reduced by 20% for contributory negligence.
The Court of Appeal Decision
  • Mrs Wagstaff appealed on the question of damages.  The defendants cross appealed on the question of liability.
  • The Court of Appeal applied the reasoning of the Full Court of the Federal Court in Chordas v. Bryant (Wellington Pty Limited) (1988) 20 FCR 91 and held per Basten JA, Santow and Bryson JJA agreeing:

“ …the mere fact of a degree of intoxication will not give rise to a duty to take immediate steps to remove the affected person, in order to protect other patrons.  An additional element is required.  That element is knowledge, either actual or constructive, of the aggressive character of the person, when intoxicated, based either on known characteristics or conduct on the occasion in question. “

  • The Court held it is necessary to establish there was knowledge, either actual or constructive, on the part of the bar manager that an intoxicated patron was likely to assault another patron for there to be a breach of duty.
  • It is foreseeable that some people will become aggressive when drunk but it does not follow that a publican must treat every intoxicated patron as a potential source of unprovoked violence.
  • As there was no prior knowledge of the men or their characters and no evidence of disruptive or aggressive conduct on an earlier occasion on the night in question, there was no breach of duty.  There was no evidence the two men had earlier misbehaved in a manner which suggested they might be a threat to other patrons.
  • There was no attack until Mr Wagstaff had made a gesture towards one of the men which was offensive and calculated to offend.  He also said “Fuck off idiot, you’re pissed”.  The trial judge found this was inflammatory conduct in what was obviously a volatile situation.  The bar manager was at that point required to make a judgment call.  The Court of Appeal held he acted reasonably and prudently in removing the broken glass from the immediate environment.
  • The Court of Appeal held the evidence did not establish the glass had been broken in anger and there was no evidence the bar manager knew or should have known of this.  He was not present during the abuse which preceded the breaking of the glass.
  • In relation to the plaintiff’s assertion that there was inadequate security on the night in question, in the absence of any evidence called by the plaintiff to establish unreasonableness according to current industry practice, his Honour’s conclusion should not be disturbed.
  • The Court of Appeal noted that there was no appeal in relation to Mr Wagstaff.  However, as the plaintiff and her husband had separate causes of action against the defendants, different results in separate proceedings would not relevantly bring the administration of justice into disrepute.
  • The Court ordered that there be judgment for the defendants against Mrs Wagstaff.  As Mr Wagstaff’s judgment was not appealed, the judgment stood.
Implications
  • This case turns on its own facts.
  • The decision may be distinguished from another recent Court of Appeal decision of Spedding v. Nobles & McNally where the bar manager had been notified of an earlier assault on one of the plaintiffs.
  • Whilst it is foreseeable that some people will become aggressive when drunk it does not follow that a publican must treat every intoxicated patron as a potential source of unprovoked violence.
  • It is necessary to establish there was knowledge, either actual or constructive, on the part of the bar manager that an intoxicated patron was likely to assault another patron for there to be a breach of duty.
  • The decision of the Full Court of the Federal Court in Chordas v Bryant (Wellington Pty Limited) (1988) 20 FCR 91 has now been referred to with approval in a number of appellate decisions in New South Wales in respect of the duty of care owed by the occupier of licensed premises to patrons who are assaulted by third parties on the premises, and remains good law.  The case also reaffirmed the principle that a breach of a statute (in that case s79 of the Liquor Ordinance 1975) may be evidence of a breach of a common law duty of care but it will not confer a private right of action for damages resulting in breach.

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