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[2009] HCA 48
appellant. Appeals allowed with costs; orders of the Court of Appeal set aside; in lieu thereof, appeals to that Court allowed with costs and judgment entered for the defendant with costs in each matter.
Two men were shot at a packed New Year's Eve party in a licensed Sydney restaurant after a fight spilled over. The shooter left, got a gun and came back. The victims sued the restaurant owner for not having security staff. The High Court said the restaurant did owe a legal duty to take reasonable steps to stop patrons being hurt by drunken violence because it controlled who came in and was bound by liquor laws to stop fights. But the victims could not prove that hiring licensed security guards would actually have stopped this particular shooter. His actions were irrational and violent; security might have made no difference. Because the Civil Liability Act requires proof that 'but for' the lack of security the harm would not have happened, and this was not shown, the claims failed. The Court emphasised that criminal acts by determined third parties are hard to link causally to a business's omissions.
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11 cited instruments linked from this judgment.
3,362 words · generated 24/04/2026
On the night of 31 December 2002 into the early hours of 1 January 2003, Adeels Palace, a licensed restaurant in Punchbowl, New South Wales, hosted a New Year's Eve function. Admission cost $60 per person, which included food but not drinks. The premises operated under an On-Licence (Restaurant) issued under the Liquor Act 1982 (NSW), with a seating capacity limited to 295 and an entertainment licence capped at 283 persons. The restaurant was full. A band played, patrons danced at long tables, and alcohol was served until 4 am.
At approximately 2.30 am a minor altercation occurred on the dance floor when one woman accused another of brushing her with a lighted cigarette. Words were exchanged, relatives and friends became involved, punches were thrown, and the disturbance rapidly escalated as onlookers joined in. Chairs, plates and bottles were used as missiles. One participant was struck in the face, drawing blood. He left the premises and returned minutes later armed with a handgun. Someone shouted a warning. Mr Bou Najem ran toward the kitchen but slipped. The gunman followed, pointed the weapon at him while he was on the floor, and shot him in the leg despite pleas for mercy. The gunman then returned to the main dining area, located the man who had struck him, shot him in the stomach (Mr Moubarak), and left.
Both injured men brought proceedings in the District Court of New South Wales alleging that Adeels Palace Pty Ltd, the operator of the business and occupier (with one of its directors being the licensee), had been negligent in failing to provide any or any sufficient licensed security personnel. The actions were heard together. The trial judge found liability and awarded damages. The Court of Appeal (Beazley, Giles and Campbell JJA) dismissed appeals by the operator: Adeels Palace Pty Ltd v Moubarak (2009) Aust Torts Reports ¶81-997.
The High Court granted special leave. The appeals were heard together. The Court (French CJ, Gummow, Hayne, Heydon and Crennan JJ jointly) allowed both appeals with costs, set aside the Court of Appeal orders, and substituted orders allowing the appeals to that Court and entering judgment for the defendant with costs in each proceeding. The critical failures were in proof of breach of duty under s 5B of the Civil Liability Act 2002 (NSW) and, decisively, in proof of factual causation under s 5D.
The joint judgment began by insisting that analysis must start with the two statutes that governed the factual and legal landscape: the Civil Liability Act and the Liquor Act. Part 1A of the Civil Liability Act applied to any claim for damages for harm resulting from negligence, whether in tort, contract or otherwise. Sections 5B and 5C, although placed under the heading "Duty of care", were held to be directed to breach. Section 5B(1) provides that a person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant, and a reasonable person in the person's position would have taken those precautions. In deciding the last question the court must consider (among other things) probability, likely seriousness, burden of precautions and social utility.
Section 5D divided causation into two distinct elements: factual causation (the negligence was a necessary condition of the occurrence of the harm) and scope of liability. The "but for" test is the statutory test of factual causation. Only in an exceptional case, determined in accordance with established principles and after considering whether and why responsibility should be imposed, may a court depart from it.
The Liquor Act was central to duty. Section 125(1)(b) made it an offence for a licensee to permit indecent, violent or quarrelsome conduct on licensed premises. Section 103 empowered the licensee or employee to refuse admission to or to turn out violent, quarrelsome or disorderly persons, using reasonable force if necessary, and obliged police to assist. Section 2A declared liquor harm minimisation, including minimisation of violence, a primary object of the Act. These provisions were said to form part of the price exacted for the statutory permission to sell liquor. Analogous provisions exist in every Australian jurisdiction.
Against that background the Court held that Adeels Palace owed each plaintiff a duty to take reasonable care to prevent injury to patrons from the violent, quarrelsome or disorderly conduct of others. Three features distinguished the case from Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254: the complaint was failure to control access to and continued presence on the premises; the premises were licensed for the sale and consumption of liquor where alcohol-related violence is a recognised risk; and the duty asserted mirrored the licensee's statutory obligations. The duty was not absolute and was supported by the statutory powers to exclude or remove persons.
On breach, the Court was sceptical. The plaintiffs had contended that licensed security ("bouncers") should have been stationed both at the street entrance and inside the restaurant. The trial judge and Court of Appeal had focused only on door control. No finding was made that internal supervision was required. The s 5B inquiry had to be undertaken prospectively, before the function began, not with the wisdom of hindsight after a gunman appeared. The evidence of prior incidents was weak (only some reports of threatening conduct by passers-by outside). The demographic of the crowd (families and mixed ages) did not suggest an obvious need for security. The probability that a person who left after a fight would return armed and determined to shoot was not shown to be such that a reasonable person would have engaged licensed security. The burden of doing so (multiple trained personnel under the Security Industry Act 1997 (NSW)) was not inconsequential. Ultimately the Court found it unnecessary to reach a final conclusion on breach because causation was not established in any event.
On causation the reasoning was decisive. The trial judge's reasoning had not been fully articulated; the Court of Appeal reconstructed it as an inference that security staff at the entrance, aware of the fracas and seeing blood on the gunman's face, would have denied him re-entry or required a search. The High Court held that this was not supported by the evidence. Security personnel might deter the drunk or obstreperous, but the gunman was a determined, armed, irrational assailant bent on revenge. His conduct was not dictated by reason or prudential considerations. The plaintiffs' own security expert had gone no further than saying a security person "would have at least altered the chain of events and thereby likely altered the outcome". The defendant's expert emphasised that once a determined gunman targets victims there is "no guaranteed safe or effective option".
Mere possibility that security might have delayed entry, changed the target, or led to intervention was insufficient. The statutory test required the absence of security to be a necessary condition of the harm. That test was not met. The Court refused to treat the case as exceptional under s 5D(2). To do so would depart from established principles merely because the harm was "the very kind of thing" the duty was designed to prevent. That consideration might affect scope of liability but could not dispense with factual causation. The cases were unlike Home Office v Dorset Yacht Co Ltd or Stansbie v Troman where reasonable care would probably have prevented the injury. Nor were they analogous to Fairchild v Glenhaven Funeral Services Ltd. Imposing liability where the "but for" test was not satisfied would mean that negligence that merely made criminal wrongdoing less likely was treated as its cause, contrary to Modbury.
The Trade Practices Act 1974 (Cth) s 74 contention (implied warranty of due care and skill) failed for the same reason: the plaintiffs could not establish that any breach materially contributed to their loss.
Before Adeels Palace the leading High Court authority on liability for the criminal acts of third parties was Modbury Triangle. There the occupier of a shopping centre was held not to owe a duty to keep car-park lights on to protect a tenant from assault by an unknown assailant. The duty alleged was founded only on the occupier's control of the physical state of the land. The Court left open whether a duty might arise where the complaint concerned control of access or of persons on the land. Lower courts had struggled with the limits of Modbury, particularly in the context of licensed venues and shopping centres.
The Civil Liability Act 2002 (NSW), inserted by the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW), had already altered the landscape. It enacted a statutory test of breach (s 5B) that emphasised prospective reasonableness and a bifurcated test of causation (s 5D) that separated factual causation from scope of liability and made the "but for" test statutory. Similar legislation was enacted in most Australian jurisdictions. The Liquor Act 1982 (NSW) (now replaced by the Liquor Act 2007 (NSW) with comparable provisions) had long imposed positive obligations on licensees to prevent violent conduct.
Adeels Palace clarified that on licensed premises a duty to take reasonable care to prevent third-party violence can exist. The statutory licensing regime is not used to create the duty by analogy but to ensure that any common-law duty does not cut across the legislative scheme. The decision confirmed that breach must be judged prospectively by reference to s 5B factors and cannot be inferred merely from the fact that harm eventuated. Most importantly, it insisted on rigorous application of the statutory "but for" test of factual causation even where the harm is of the very kind the duty was designed to prevent. In cases of deliberate criminal wrongdoing, especially irrational or determined wrongdoing, plaintiffs face a high evidentiary hurdle. The exceptional-case gateway in s 5D(2) was read narrowly; it does not permit liability on a material-increase-in-risk basis outside established principles such as those in Fairchild.
After the decision, operators of licensed venues must still assess the need for security by reference to the s 5B factors applied prospectively. However, even clear breach will not lead to liability unless the plaintiff can prove that the absence of the relevant precaution was a necessary condition of the particular harm that materialised. The decision therefore narrowed the practical scope of liability for third-party criminal acts on commercial premises despite the existence of a duty.
Paragraph 27: "It is against this statutory background that the question of duty of care must be considered, not for the purpose of developing the common law by analogy with statute law, but to ensure that the imposition of a common law duty of reasonable care of the kind now in question would not run counter to the statutory requirements imposed on licensees in all Australian jurisdictions."
Plain English: We look at the liquor licensing laws not to copy them into the common law but to make sure any duty we recognise does not contradict what Parliament has already required of licensees everywhere in Australia.
Paragraph 40: "Many different matters were relevant to the questions that thus were posed. They included, but were not limited to, such matters as the number of patrons expected to attend the restaurant, the atmosphere that could reasonably be expected to exist during the function, and whether there had been any suggestion of violence at similar events held in comparable circumstances, either at this restaurant or elsewhere. And all of those questions fell to be answered, and the probability of harm and other considerations mentioned in s 5B(2) assessed, prospectively, not with the wisdom of hindsight."
Plain English: To decide if security was needed, you must look forward from before the party started. How many people were coming? What sort of night was likely? Had there been trouble at similar functions? You cannot use the fact that a shooting actually happened to say security was obviously required.
Paragraph 50: "The evidence at trial did not show that the presence of security personnel would have deterred the re-entry of the gunman. That conclusion could have been reached only if it was assumed that the gunman would have acted rationally. But, as was pointed out in Modbury, '[t]he conduct of criminal assailants is not necessarily dictated by reason or prudential considerations'."
Plain English: Security guards might stop a drunk spoiling for a fist fight, but this man had a gun and was out for blood. Criminals do not always behave sensibly. The evidence never proved the guards would have stopped him.
Paragraph 53: "It was not shown to be more probable than not that, but for the absence of security personnel (whether at the door or even on the floor of the restaurant), the shootings would not have taken place. That is, the absence of security personnel at Adeels Palace on the night the plaintiffs were shot was not a necessary condition of their being shot. Because the absence of security personnel was not a necessary condition of the occurrence of the harm to either plaintiff, s 5D(1) was not satisfied."
Plain English: The plaintiffs could not prove that if security had been there the shootings would not have happened. Under the Civil Liability Act that means their case on causation fails.
Paragraph 58: "Even if the presence of security personnel at the door of the restaurant might have deterred or prevented the person who shot the plaintiffs from returning to the restaurant, and even if security personnel on the floor of the restaurant might have been able to intervene in the incident that broke into fighting in time to prevent injury to anyone, neither is reason enough to conclude that this is an 'exceptional case' where responsibility for the harm suffered by the plaintiffs should be imposed on Adeels Palace. To impose that responsibility would not accord with established principles."
Plain English: Just because security might have reduced the chance of injury does not let a court ignore the "but for" test. This is not one of those rare exceptional cases where the law allows liability anyway.
The decision is triggered where a plaintiff injured by a deliberate criminal act on licensed premises sues the operator in negligence for failure to provide adequate security. Key elements are: (1) the defendant is the occupier and/or licensee or its corporate operator; (2) the premises are licensed under liquor legislation containing harm-minimisation objects and powers to exclude violent persons; (3) the injury results from an armed or otherwise violent third-party assailant who has entered or re-entered after an earlier altercation; (4) the allegation is that licensed security personnel (crowd controllers under the Security Industry Act) should have been engaged at the door, inside, or both; and (5) the claim is brought after the commencement of the Civil Liability Act or equivalent legislation.
The precedent applies with greatest force where the assailant's conduct is irrational or determined, where prior violent incidents at the venue are few or absent, where the crowd profile is mixed rather than high-risk, and where expert evidence does no more than assert that security "would likely have altered the outcome". It is not limited to restaurants; any licensed venue (hotel, club, function centre) at which alcohol is served and large numbers gather falls within the reasoning. The duty analysis is engaged whenever the operator can control entry and continued presence. The causation analysis is engaged whenever the plaintiff cannot prove on the balance of probabilities that the particular precaution would have prevented the particular assailant from causing the particular harm.
The judgment itself carefully positioned itself within the existing authorities. It distinguished Modbury Triangle on the ground that the duty there was limited to control of the physical state of the land, whereas here the complaint was failure to control access and the conduct of persons on licensed premises ([17]-[19]). It cited March v Stramare to contrast the former "common sense" approach to causation with the statutory bifurcation in s 5D ([44]). It distinguished Chappel v Hart because in that case the "but for" test was satisfied and the debate concerned additional normative considerations; here the "but for" test was not satisfied ([55]). It distinguished Home Office v Dorset Yacht and Stansbie v Troman because in those cases the evidence showed that reasonable care would probably have prevented the injury ([52]). It distinguished Fairchild as involving successive exposures to asbestos and multiple employers, a situation far removed from a single determined gunman on a single night ([58]).
The Court emphasised that its reasoning accorded with established principles and that s 5D(2) is not a general discretion to impose liability whenever a court thinks it fair. Because the decision is a unanimous judgment of the High Court on the construction of the Civil Liability Act (adopted in identical or near-identical form across Australia), later courts are bound to apply the statutory text as interpreted. The prospective nature of the s 5B inquiry, the strictness of the "but for" test, and the narrow reading of "exceptional case" have become the orthodox approach in third-party violence cases on commercial premises.
The judgment left several matters unresolved. First, it expressly declined to reach a concluded view on breach, noting that the trial judge had not undertaken the s 5B analysis in the manner required. The precise circumstances in which the probability of violence at a licensed venue will require licensed security therefore remain fact-sensitive and will continue to generate dispute.
Second, the content of the "exceptional case" exception in s 5D(2) was not fully mapped. The Court observed that the provision was enacted to deal with cases such as Fairchild but gave no comprehensive guidance on its boundaries. Whether it could ever apply to a single-event intentional tort case, or whether it is limited to cumulative-exposure diseases, remains open.
Third, the interaction between the statutory duty of care analysis and the contractual/implied warranty claim under the Trade Practices Act (now Australian Consumer Law s 60) was left for another day. The Court noted that material contribution might suffice for the statutory warranty but held that even that lower standard was not met on the facts.
Fourth, the Court did not explore the position where security is provided but is alleged to be inadequate in numbers or training, nor did it decide whether a duty might extend to protecting patrons from violence occurring immediately outside the premises after they have been removed.
Finally, the precise evidentiary threshold for proving that security would have prevented re-entry by an armed assailant was not spelled out. The Court rejected both the trial judge's reconstructed inference and the plaintiffs' expert's "altered the chain of events" opinion, but left open what affirmative evidence would be sufficient in a future case.
Most practitioners still assume that if a licensed venue has a foreseeable risk of violence, the mere failure to have licensed security is almost automatically both a breach and a cause of any subsequent injury. Adeels Palace shows this is wrong on two levels. First, breach requires a rigorous prospective s 5B analysis; hindsight that a gunman appeared is irrelevant. Second, and more importantly, causation is now a statutory "necessary condition" test. Even if everyone agrees that security would have been a good idea and might have reduced risk, that is not enough. The plaintiff must prove that this particular assailant would probably have been stopped. In cases of determined, irrational violence the evidentiary burden is extraordinarily high. Many claims that once would have settled for six figures now fail entirely at causation. The "very kind of harm" argument that used to carry the day at common law is, after this decision, largely irrelevant to factual causation. Compliance professionals advising licensed venues should therefore focus on documented risk assessments that address the s 5B factors before each large event rather than assuming that hiring bouncers will automatically buy legal immunity or that their absence will automatically create liability. The decision is a powerful shield for operators but only if the evidentiary record is built prospectively.
(a) the appeal to that Court be allowed with costs;
(b) the orders of the District Court of New South Wales made on 25 January 2008, as amended by order 1 of the orders of that Court made on 14 February 2008, be set aside, and in lieu thereof there be judgment for the defendant with costs.
(a) the appeal to that Court be allowed with costs;
(b) the orders of the District Court of New South Wales made on 25 January 2008 be set aside, and in lieu thereof there be judgment for the defendant with costs.
On appeal from the Supreme Court of New South Wales
J E Sexton SC with M J Gollan for the appellant (instructed by Lee & Lyons Lawyers)
B M Toomey QC with D R Campbell SC and D C Morgan for the respondent in S191/2009 (instructed by Leitch Hasson Dent Solicitors)
S G Campbell SC with J W Catsanos for the respondent in S192/2009 (instructed by Sanford Legal)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Torts - Negligence - Duty of care - Where gunman shot two men at New Year's Eve function - Where shootings occurred on licensed premises - Whether defendant owed duty of care to prevent injury from conduct of other patrons - Relevance of statutory requirements under Liquor Act 1982 (NSW).
Torts - Negligence - Breach of duty - Where no licensed security personnel on premises - Whether licensed security personnel ought to have been provided - Relevance of size and type of function - Relevance of past incidents at premises.
Torts - Negligence - Causation - Whether absence of licensed security personnel necessary condition for shootings taking place - Whether "but for" test of causation satisfied - Relevance of nature of damage sustained - Whether an exceptional case.
Words and phrases - "necessary condition of the occurrence of the harm", "factual causation", "scope of liability", "an exceptional case".
(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.
In proceedings relating to liability for negligence:
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk."
Both provisions are evidently directed to questions of breach of duty.
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
In determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation."
"Liquor harm minimisation is a primary object of this Act
A primary object of this Act is liquor harm minimisation, that is, the minimisation of harm associated with misuse and abuse of liquor (such as harm arising from violence and other anti‑social behaviour). The court, the Board, the Director, the Commissioner of Police and all other persons having functions under this Act are required to have due regard to the need for liquor harm minimisation when exercising functions under this Act. In particular, due regard is to be had to the need for liquor harm minimisation when considering for the purposes of this Act what is or is not in the public interest."
The second and related point to make is that the duties cast upon those responsible for the service of liquor on licensed premises can be understood as a part of the price that is exacted for the statutory permission granted under the Liquor Act. The permission granted is to do what otherwise the Act forbids[9] - sell liquor - and to do that on premises to which members of the public may resort only in accordance with the conditions on which the licence is granted.
"From the evidence, security staff would have been aware of a significant fracas on the dance floor. Even if [the gunman] had not been identified at the time as the man who had got into a fight with Mr Moubarak, the presence of blood on his face would have caused the security staff at the street entrance, particularly with knowledge of the fracas, to deny him entry, or at least to require that he submit to search as a condition of being permitted to enter. On the balance of probabilities, security staff at the street entrance would have deterred or prevented [the gunman's] re‑entry, and he therefore would not have shot Mr Moubarak and Mr Bou Najem."
Adeels Palace Pty Ltd
Moubarak
[2009] HCA 15
[1998] HCA 3
[1998] HCA 55
(2000) 205 CLR 254
(1999) 201 CLR 49
(1945) 70 CLR 256
(1958) 98 CLR 177
Appeals allowed with costs; orders of the Court of Appeal set aside; in lieu thereof, appeals to that Court allowed with costs and judgment entered for the defendant with costs in each matter.
(2005) 227 CLR 1
(2009) 237 CLR 215
(1998) 192 CLR 330
(2005) 223 CLR 422
(1991) 171 CLR 506
(1954) 91 CLR 268
(2005) 224 CLR 627
(1998) 195 CLR 232
(1992) 176 CLR 408
(2002) 210 CLR 109