Rooty Hill RSL Club Ltd v Karimi

Rooty Hill RSL Club Ltd v Karimi - [2009] NSWCA 2 - NSWCA 2009 case summary — Zoe

[14]

Friday 30 January 2009 Rooty Hill RSL Club Limited v Tarique Karimi by his tutor Qudsia Askarzada Allied Security Group Pty Limited v Tarique Karimi by his tutor Qudsia Askarzada Judgment 1 ALLSOP P: I agree with the orders proposed by Bell JA and with her Honour's reasons. 2 BASTEN JA: I agree with the orders proposed by Bell JA and with her Honour's reasons. 3 BELL JA: Introduction The respondent, Tarique Karimi, suffered serious injury as the result of an assault, which was committed on him in the car park of the Rooty Hill RSL Club (the Club) by an intoxicated patron named Michael Smith. The assault occurred at around 11.30pm on Saturday 19 April 2003. Mr Karimi had been the innocent victim of an earlier unprovoked assault by Michael Smith inside the Club that evening (the initial incident). As a consequence of the initial incident both men were evicted from the Club by security guards employed by Allied Security Group Ltd (Allied). The departure of each was managed by Allied staff such that Mr Karimi and his companions left by the rear, western, entrance and Mr Smith and his girlfriend, Ms Cameron, left by the front, eastern, entrance. Mr Smith and Ms Cameron told the security guards that they intended going home. A security guard saw them drive out of the front car park. This information was conveyed to the security staff at the western entrance who then invited Mr Karimi and his companions to leave. It appears that contrary to the representations made to the security staff, Ms Cameron drove Mr Smith into the western car park. As Mr Karimi walked through the car park Mr Smith ran up to him and "king hit" him with sufficient force to knock him backwards to the ground. Mr Karimi was conveyed in an unconscious condition to hospital where he remained comatose for around two months. He suffered significant residual brain damage as the result of the assault. 4 Mr Karimi brought proceedings by his tutor in the Supreme Court, in negligence against the Club and Allied, and in trespass to the person against Michael Smith. The Club cross-claimed against Allied and Mr Smith. Mr Smith did not enter an appearance or take any part in the principal proceedings. He had not been served with the cross-claim at the date of the trial.

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27 His Honour found that Allied's security guards and the Club's managers who attended the incident inside the Club ought to have known that Mr Smith was potentially dangerous. He was critical of the Club's policy which required that all parties to a dispute be evicted without any assessment of the identity of the aggressor. This was a failure that his Honour considered went to the Club's exercise of care for its patrons. He found that employees of the Club and of Allied, both of whom were involved in the decision to require Mr Karimi to leave the Club, failed to heed information that identified Mr Smith as the aggressor. (Judgment, [28]) 28 His Honour had regard to the Club's Security Standard Operating Procedures (the Security SOP) (Exhibit "D"), which, relevantly, provided: The perimeter security and the security of the immediate public areas, car parks outside the Club is obviously crucial to the success of the overall security strategy. … When appointed for duty at either the external area or car parks of the Club, your principal duties are to ensure an incident free and safe environment for the Club's staff and patrons as well as for the free movement for cars and pedestrians. Guidelines are as follows: … 7. Staff are to be escorted to their vehicles in the staff car park after sundown. External operatives should listen for hard evictions coming out either the Main Foyer or Western Foyer. Steps should be taken to ensure the area is clear of patrons and that the 'snap-open' doors are wide open. Once a patron has been evicted or refused entry it is the responsibility of External Security to ensure they do not re-enter and remain off site if that has been instructed by the Security Supervisor or Management. (Emphasis as added) 29 His Honour also had regard to the evidence of Mr Pale-Eli (Black 123.F-K): Q. You've got a fight and you've broken up the fight and you've taken one person out one door and another officer's taken the other fighter out the other door. Are you given any guidance as to what you should do with the people once they're out the door? A. To manage them while they're outside. Q. Yes? A. If they need a taxi supply them with a taxi to get home. If they're got vehicles then make sure they're taken to their vehicles, and just practically supervise them while they're outside or while they're in the club.

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33 The law recognises that the occupiers of licensed premises may be liable for the tortious or criminal conduct of patrons: Chordas v Bryant (Wellington) Pty Ltd [1988] FCA 462; (1988) 20 FCR 91; Oxlade v Gosbridge [1998] NSWCA 167; (Court of Appeal, 18 December 1998, unreported); Wagstaff v Haslam [2007] NSWCA 28; (2007) 69 NSWLR 1; Spedding v Nobles [2007] NSWCA 29; (2007) 69 NSWLR 100; and Collingwood Hotel Pty Ltd v O'Reilly [2007] NSWCA 155. The basis of the liability lies in the control exercised by the occupier over patrons and the occupier's knowledge, or ability to know about, the intoxicated condition of patrons: Wagstaff per Basten JA (Santow and Bryson JJA concurring) at 7 [24]. The element of control is subject to statutory obligations not to permit intoxication or violent or quarrelsome conduct on licensed premises and to remove those who engage in such conduct. At the time of these events these obligations were imposed on the Club under ss 44A(1) and 67A of the Registered Clubs Act 1976 (NSW). 34 In Wagstaff it was said that the duty - to take steps to protect patrons from the tortious or criminal acts of other patrons - does not arise merely from the fact of intoxication. An additional element is required, which was identified as knowledge, actual or constructive, of the aggressive character of the person when intoxicated: at 13 [50]; see, too, Collingwood at [21]. 35 It was not in issue at the trial that the Club was subject to a duty to exercise reasonable care arising out of the intoxicated or dangerous condition of its patrons, which duty extended to the protection of a patron while he was on or departing from the premises. (Judgment, [26]) Allied accepted that it owed a duty by reason of its provision of security services at the Club to exercise reasonable care to avoid one patron injuring another in circumstances where it knew or had constructive knowledge that the patron was a potential source of danger. 36 The Club submitted that the primary judge had, wrongly, found that its managers were present at the scene of the initial incident. Its position was that it did not have actual or constructive knowledge of Mr Smith's aggressive character. Allied's submission was that his Honour failed to address the evidence that at the time its staff saw Mr Smith off the premises they were satisfied that he had regained control and that he no longer posed a threat to Mr Karimi or other Club patrons. It was an error in Allied's submission to approach its liability for Mr Smith's subsequent criminal conduct on the basis of nothing more than that it was foreseeable that Mr Smith might re-enter the premises and assault Mr Karimi. The imposition of the duty was said to depend upon it having actual or constructive knowledge that Mr Smith's condition at the time he parted from the guards was such that he posed a danger to Mr Karimi.

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62 The initial incident occurred at about 11.10pm. The security staff spoke with Mr Smith for 10 minutes after he was escorted out of the Club. Over this interval he appeared to calm down. The three security staff who were involved in his eviction each gave evidence in this respect. Mr Pale-Eli said that if a person who had been ejected from the Club was waiting around the security staff would not let the other person leave the premises until the first person had "left totally" (Black 124.N-O). In Mr Pale-Eli's judgment Mr Smith had calmed down and was going home with his girlfriend. He had no concern that Mr Smith would return and cause trouble to anyone that night. (Black 124.U -125.H) 63 Mr Scholes thought that Mr Smith had quietened down and that "it was all over". (Black 136.P) He had no suspicion that Mr Smith was going to seek out Mr Karimi. Had he thought that Mr Smith was likely to present a further problem to any person at the Club he would have notified the control room so that the staff at the western foyer and the internal staff were aware of the risk. (Black 136.Q-X) 64 Mr Peterson was not able to remember all the things that Mr Smith had been saying. He agreed that the statement that he made to the police on 18 June 2003 was correct. In the statement, he gave this account: We started talking to the guy. He seemed to be angry. He wasn't directing it at us, but was saying that he had a fight with three guys inside the club. During the time we were speaking to him, he said, "Every time my girlfriend goes to the Club, one of them follows her around." "He was still following her around tonight even though I was there." "I have been boxing for 8 years, and I'd knock them all out" or something along those lines. When we asked him to go home he said, "I'll wait out the front for them to come out. Why haven't they been kicked out?" As we were talking to him he seemed aggressive and kept putting his hands into fists. I noticed that he had big fists. During the conversation I walked away to near the front doors. A couple of minutes later I went back to the footpath where the guy was talking to another guard. As I got there he said, "yeah, No worries, next time I have trouble I will come and see youse." The other guard said, "Yeah, make sure you come and see us, we'll deal with it. That's what we're here for." I said to the girlfriend, "Just make sure you take him home." She said, "Yeah, I'll take him straight home." The guy shook our hands and walked off with the girl to the car park." 65 Mr Peterson thought that Mr Smith had calmed down and was not going to present any more trouble that night. (Black 144.W) 66 Mr Jennings considered that any statements made by an evictee should be ignored by security staff. In his experience it was commonplace for people to calm down after an incident but this did not mean that they may not become violent again after a short interval. (Black 103.H-X) Nonetheless, the determination of the reasonableness of the Club's and Allied's response to the risk that Mr Smith might return and renew his criminal aggression towards Mr Karimi must include that an assessment was made of this risk by the security staff and that it was judged that Mr Smith had calmed down. In the event, the assessment was wrong. Of significance for present purposes, is that there was no challenge made to the security guards that the assessment had not been conscientiously made or that it was unreasonable.

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