Cregan Hotel Management Pty Ltd & Anor v Hadaway

Orders 77I propose the following orders. They have the effect that the mistaken judgment against the second appellant is also expunged. The cross-claim against Mr Robinson fails because there is nothing for which to claim contribution, and although Mr Robinson did not appear on appeal I see no reason to deny him the trial costs of the cross-claim, if any.

Appeal allowed
Set aside orders (b), (c), (d), (e) and (f) made in the District Court on 3 September 2010.
In lieu thereof the orders - (a) Judgment for the second and third defendants; (b) Judgment for the cross-defendant Mr Robinson on the cross-claim; (c) Plaintiff pay the costs of the second and third defendants; (d) Cross-claimant pay the costs of the cross-defendant Mr Robinson.
First respondent Mr Hadaway pay the appellants' costs of the appeal and have a certificate under the Suitors Fund Act 1951. 78BASTEN JA : On the evening of 17 September 2004, at about 9.30pm, the respondent, Mr Graham Hadaway, was assaulted and injured by Mr Heath Robinson. In the course of the assault, Mr Robinson broke Mr Hadaway's leg. Mr Hadaway (whom it is convenient to call "the plaintiff") brought proceedings against Mr Robinson claiming damages in respect of an intentional assault and battery. He was successful in the District Court and obtained a judgment in his favour in a substantial sum. That judgment is not in issue in the present proceedings. 79For more than four hours before the assault, the plaintiff and Mr Robinson had been drinking at a hotel owned and operated by the first appellant, Cregan Hotel Management Pty Ltd ("Cregan Hotel"), through its manager, Mr Lindsay Archibald, who held a licence in respect of the premises under the Liquor Act 1982 (NSW). The assault did not take place on the hotel premises, but on a street about 200 metres from the hotel. The plaintiff did not assert that the appellants were in any way responsible for the conduct of Mr Robinson; rather, each was sued in negligence, the particulars of which were, in substance, a failure to take adequate precautions to prevent Mr Robinson assaulting the plaintiff. 80The pleading was manifestly deficient in that it failed to allege that the appellants, or either of them, owed a duty of care to the plaintiff, nor the facts from which such a duty might arise. Further, in written submissions filed at trial on the "liability issue", dated 5 June 2009, the plaintiff accepted that Mr Archibald was not liable and was entitled to a judgment in his favour: paragraph 68. The case against the corporate appellant, Cregan Hotel, as the owner and operator of the business, was expressed in the following terms (written submissions, par 69): "[Cregan Hotel] owed the plaintiff a duty of care, as a patron of the hotel, to protect him from risk of attack by Robinson not merely while the plaintiff was on the hotel premises but also while he was making his way from the hotel. This duty of care arose because of the type and number of direct physical threats which Robinson made to the plaintiff and Robinson's stated intention to bash the plaintiff when he got him outside the hotel, all of which [Cregan Hotel's] employees heard." 81There was no dispute on the appeal that the owner and operator of licensed premises owed a duty of care to its patrons, which extended to taking reasonable care to prevent them being attacked by other persons who were aggressive, or were likely to be aggressive because affected by liquor: see Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91, applied by this Court in Wagstaff v Haslam [2007] NSWCA 28; 69 NSWLR 1 at [39]. The earlier cases in which such claims have been upheld by injured patrons have mainly related to attacks which occurred on licensed premises, as in Wagstaff : see also Spedding v Nobles; Spedding v McNally [2007] NSWCA 29; 69 NSWLR 100; Collingwood Hotel Pty Ltd v O'Reilly [2007] NSWCA 155 and Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420, although in each of the latter cases the claims failed on the facts. There have been further cases where claims have been brought in respect of assaults which occurred beyond the boundaries of the licensed premises. In some cases the duty has been claimed on behalf of the inebriated patron who has been injured (or killed) as a result of his or her own conduct: Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; 217 CLR 469 and CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; 239 CLR 390. 82There have also been cases more directly relevant to the present circumstances, in which one patron has assaulted another, beyond the precincts of the licensed premises: Rooty Hill RSL Club Ltd v Karimi [2009] NSWCA 2 and Portelli v Tabriska Pty Ltd [2009] NSWCA 17. In each case the parties involved in the altercation off the premises had been involved in a fracas within the premises, to the knowledge of the staff of the manager, who had separated the parties. In each case the claim failed. In Karimi , as explained by Bell JA, the club and the company responsible for security at the premises, were not shown to have failed to take reasonable care for the safety of Mr Karimi. However, her Honour acknowledge the potential availability of a claim in such circumstances, at [59]: "Mr Karimi was being turned out of the Club by Allied staff following an unprovoked assault on him inside the Club. The reasonableness of the policy of requiring that all of the participants in an altercation be required to leave may not be in doubt. However, one consequence of it is that an innocent party, as Mr Karimi was, is potentially vulnerable to further assault by being required to leave along with the aggressor. Allied's duty to take reasonable care to protect Mr Karimi from the criminal conduct of Mr Smith, which arose because of Mr Smith's known intoxicated and aggressive behaviour inside the Club, did not come to an end following his eviction. Allied's guards did not act upon a view that their responsibility was at [an] end after Mr Smith had been escorted beyond the perimeter of the Club. They spent time talking to Mr Smith and satisfying themselves that he had calmed down and that it was his intention to go home with his girlfriend. I consider that the assessment made by Allied's guards of Mr Smith's condition is critical to its liability, and to the liability of the Club, for the later criminal assault committed by him on Mr Karimi but in my view this is because it bears on the determination of the measures that were reasonably required to discharge the duty." 83Portelli involved an altercation which occurred in a hotel in Jindabyne, following which the assailants were escorted off the premises through the front door and the victim was allowed to leave via the back door shortly thereafter. As explained by Allsop P, the primary judge had approached the claim on the basis that there was no duty of care owed to the plaintiff once he had left the premises: at [24]. However, the trial judge had also held that if a duty did arise, there had been no breach in the circumstances of the case. A challenge to that finding failed in this Court: at [59]. Nevertheless, Allsop P, with whom Hodgson and Macfarlan JJA agreed, expressed reservations as to the proposition that the duty "cannot extend to any circumstances where the wrongdoing causing injury to the plaintiff occurred in a public street": at [61]. His Honour continued: [61] ... The element of control which, together with the statutory obligations and occupation of the site, is the foundation of the duty may in appropriate circumstances apply to control of the victim (or at least circumstances which attend the victim) as well as of the aggressor. The fact that the aggressor has been put out of the hotel may not exhaust the obligation of the licensee or occupier to take reasonable steps to respond to a foreseeable risk of injury to the remaining patron. ... [62] A publican may anticipate that a fight, which has occurred in his or her hotel before being broken up, might reignite on the street. It might be foreseeable that if this occurred there would be danger to a patron who was involved in the fight previously in the hotel and has not left, but who intends to leave. In these circumstances, it might ... be prudent of the publican to call the police. It does not mean, however, that the publican necessarily has a legal duty to do so in the discharge of a duty to a remaining patron or that he or she thereafter becomes the guardian of the patron who is still on the premises or that he or she becomes responsible for getting that patron home and beyond the clutches of the potential combatant outside. [63] Here, if the circumstances had revealed a threatening group outside the hotel and if it ... should have been reasonably apparent to [the publican] that the appellant would or might well be set upon when leaving, whatever exit were to be used, it may be that given his position of control and his obligations under the Liquor Act 1982 (NSW), especially ss 104 and 125 dealing with quiet and good order of the neighbourhood and conduct on licensed premises, he would have been obliged to ring the nearby police as a reasonable step in furtherance of the safety of the appellant. In terms of any duty to the appellant, it might well however have been sufficient for him to say something to the appellant to make the appellant aware of the danger in order that he, as a responsible adult, could make his own decisions as to how to deal with the situation." 84For the plaintiff to succeed in the present case, on the principles accepted in Karimi and Portelli , he needed to establish that: (a) responsible staff in the hotel knew, or ought to have known, at the time that he left that there was a real risk of him being pursued and attacked by Mr Robinson; (b) he had left the premises when he did, and (c) Mr Robinson knew, or was in a position to know, when the plaintiff left the premises. 85If those elements were established, there would then be a question as to what steps could reasonably have been taken to prevent Mr Robinson leaving the hotel, or otherwise to protect the plaintiff in the street. Any case depending on this approach might have faced formidable difficulties: perhaps for that reason, no such case was pleaded or, as it appears, run. 86The case differs from both Karimi and Portelli in two significant respects. First, the aggressor (Mr Robinson) was not ejected from the premises and, secondly, the plaintiff's departure was not supervised by hotel staff. The case run at trial was, in substance, that Cregan Hotel should, in the exercise of its duty to the plaintiff, have ejected Mr Robinson earlier in the evening and well prior to the plaintiff's departure. As explained in the written submissions at paragraph 78: the fact that the plaintiff was assaulted outside the hotel was not critical, because the relevant activity occurred "within the main bar itself at the time when [Cregan Hotel] being aware of the details ... of the two encounters, failed to exercise its right of control at that point in order to eject Robinson from the hotel and its environs". The submissions continued at paragraph 82: "[Cregan Hotel], in the particular circumstances of the case, including the type, number and severity of the threats made by Robinson to the Plaintiff (including, in particular, the stated intention to injure the Plaintiff as soon as he managed to have the Plaintiff go outside the hotel), required that the hotel immediately after the second encounter, should have ejected Robinson and made sure (including by giving instructions to its security guards) that he had completely left the area of the hotel and its environs, in the manner described by Mr Danny Miller, [Cregan Hotel's] bar manager. There was then a continuing breach of its duty of care in allowing Robinson to remain on the hotel premises while the plaintiff also remained on the hotel premises. The fact that up to four hours passed between the time of the last encounter and the time of the Plaintiff's departure from the hotel did not alter or remove [Cregan Hotel's] breach of its duty of care, because (for the reasons given by Mr Jennings) the risk was not reduced by that factor and possibly, if anything, increased that risk (although whether further consumption of alcohol by Robinson and the Plaintiff had this effect is entirely speculative). If the necessary protective steps (ie ejecting Robinson from the hotel and making sure that he had left the area including the environs of the hotel) had occurred, the Plaintiff would not have been injured by Robinson." 87The disparity between this case and Karimi and Portelli was augmented by the finding of the trial judge that the plaintiff himself had been "ejected" from the hotel. That finding must have been based on the evidence of a security guard, Mr Nelson: at [330], [350] and [430]. The breach of duty found by the trail judge involved the finding that, after the altercations in the hotel, relevant staff (including the manager) "must have been aware that there was a significant and foreseeable risk of a physical altercation occurring between [Mr Robinson] and the plaintiff": at [447]. His finding of breach was expressed in the following terms: "[456] First, in the aftermath of the ejection, it was still incumbent upon the hotel to keep [Mr Robinson] and his movements under observation, including to the extent of an awareness of the timing of his departure from the premises in juxtaposition to the ejection of the plaintiff from the premises. [457] Secondly, according to the standard nominated by Mr Miller, which I accept to be the reasonable standard to be observed in the circumstances, it was incumbent upon the hotel staff to ensure the plaintiff safely left the precincts of the hotel premises to a reasonable perimeter, in this case either to go to his nearby home by walking or by taxi, or to a perimeter of 300 metres, as was indicated by Mr Miller, and in either case, out of the way of foreseeable harm from predictable violent behaviour towards him from known antagonists who were within the hotel, in this case, [Mr Robinson]." 88As explained by Giles JA, the plaintiff did not run a case based upon the fact that he had been ejected forcibly from the premises. Had that occurred, it must have been as the result of an incident in the hotel shortly before 9.30pm. The circumstances of the incident would have been critical to any analysis of the appellants' obligations at that time. Because the evidence did not support the occurrence of such an incident, the judgment cannot be maintained on that basis. 89Further, the absence of any incident which might have alerted the hotel staff to continued risk of aggressive behaviour on the part of Mr Robinson towards the plaintiff at the time the plaintiff left the hotel explains why the case was run on the basis of an obligation to eject Mr Robinson earlier in the evening, when he was aggressive towards the plaintiff. I agree with Giles JA that the evidence of Mr Miller and Mr Jennings did not establish that the separation of the plaintiff and Mr Robinson, without ejecting Mr Robinson, constituted a breach of the hotel's duty of care to the plaintiff. The fact that an alternative course (ejection of Mr Robinson) was available did not demonstrate that separation was itself unreasonable. 90Nor was it sufficient to suggest that there was a "continuing breach" thereafter. A continuing breach suggests a continuing duty. In the circumstances of the case, that must have involved a continuing duty to monitor the behaviour of both the plaintiff and Mr Robinson, for the purpose of ensuring that protection was provided from Mr Robinson, presumably during his continued stay in the hotel and at the time of his departure. No case was run on that basis, nor was it demonstrated that there was any breach of such a continuing duty. It is significant that, in Karimi , the security guards had made an assessment, which was not rejected as untenable, that the aggressive party had calmed down at the time that he left the premises. Absent a continuing duty, and demonstrated breach thereof, it is difficult to suppose that the plaintiff could properly have established that the earlier failure to eject Mr Robinson was a cause of the assault which resulted, four hours later, after the plaintiff left the premises. 91I agree with Giles JA that the appeal should be allowed: I also agree with the orders he proposes.

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