Issue 69: Sept 2014, Speeches and Legal Articles of Interest
But pleasures are like poppies spread,
You seize the flower, its bloom is shed;
Or like the snow falls in the river,
A moment white — then melts for ever;
Or like the borealis race,
That lift ere you can point their place;
Or like the rainbow’s lovely form
Evanishing amid the storm…
                  Tam O’ Shanter,
Robert Burns, 1790
Lamble v Howl at the Moon
Good afternoon ladies and gentlemen. As is the way of barristers, I had planned for this speech on alcohol-related litigation to be a collection of personal war stories in which I made frequent references to my own forensic triumphs, however distant or tenuous they be. I still have some ambitions in that regard but, unfortunately, I need first to deal with a very recent and spectacular loss in the Court of Appeal.
The case concerned licensed premises at Broadbeach called Howl at the Moon where a patron sustained serious injury when he was struck — outside the premises — by a barman, and the issue became whether or not the proprietors were vicariously liable for the employee’s criminal conduct.
The story is probably best begun in 1949, with a barmaid called Mrs Barlowe and a High Court case that many of you will remember called Deatons v Flew (1949) 79 CLR 370. The Plaintiff was a patron who either made an inoffensive remark, or questioned the barmaid’s “chastity and parentage”, depending on who you believe. In any case, Mrs Barlowe assaulted the Plaintiff by throwing some beer over him and then throwing an entire glass at him, so that he lost sight in one eye.
The Plaintiff alleged that the Hotel was vicariously liable for the barmaid’s assault but the High Court held there that she was actuated by malice or other personal motives unrelated to her duties, and that claim failed.
The issue of vicarious liability was considered in some detail by the High Court in Lepore v State of New South Wales & Anor (2003) 213 CLR 511. You may recall that this litigation was concerned with the circumstances in which a school should be liable for sexual misdemeanours carried out by its teachers. The dicta of Gummow and Hayne JJ summarised Dixon J’s judgment in Deatons v Flew as follows:
“There are two elements revealed by what his Honour said that are important for present purposes. First, vicarious liability may exist if the wrongful act is done in intended pursuit of the employer’s interests or in intended performance of the contract of employment. Secondly, vicarious liability may be imposed where the wrongful act is done in ostensible pursuit of the employer’s business or in the apparent execution of authority which the employer holds out the employee as having. … What unites those elements is the identification of what the employee is actually employed to do or is held out by the employer as being employed to do. It is the identification of what the employee was actually employed to do and held out as being employed to do that is central to any inquiry about course of employment. Sometimes light may be shed on the central question by looking at a subsidiary question of who stood to benefit from the employee’s conduct. But that inquiry must not be permitted to divert attention from the more basic question we have identified. …”
That explanation of principle is, of course, closely aligned with the orthodox statement that where an employee carries out an authorised act in an unauthorised way, the employer will be liable, but not otherwise. Later illustrations are to be found in Gordon v Tamworth Jockey Club [2003] NSWCA 82 where a Plaintiff failed to establish vicarious liability against an employer after a drunken cleaner inexplicably attacked her and Blake v JR Perry Nominees [2012] VCA 122, where a Plaintiff similarly failed after he was injured by a co-worker in horse-play: see also Orcher v Bowcliffe [2013] NSWCA 478. On the other hand, there are many cases — particularly involving security guards — where a worker has gratuitously harmed a patron but, nevertheless, the employer has been found liable because it was related to their actual duties: eg Ryan v Anne Street Holdings [2006] 2 Qd R 486, a case concerning the Beat Nightclub in the Valley.
Which brings us to Lamble v Howl at the Moon [2014] QCA 74. It’s a bar at Broadbeach which is run by an Italian family and mostly caters for a tame crowd: over 30’s, mainly women, who are happy to listen to covers on a piano (by “easy listening” artists, I gathered, like Billy Joel or Don McLean).
Those of you who work for Hotels may have noticed that there is something of a pattern in the litigation. November brings Melbourne Cup lunches and claims by female Plaintiffs. December brings all—you—can-drink Christmas parties for tradesmen and then claims by male plaintiffs.
On 8 December 2006, Mr Lamble and a group of work mates from Currumbin Roof Trusses attended Howl at the Moon for their end of year Christmas party. Late in the night, one of Mr Lamble’s work mates was acting in a threatening manner. He was bundled through some glass doors and restrained by four security guards with some limited assistance from the Hotel proprietors. The rest of his work mates could clearly see the robust manner in which he was being restrained and there was some dissent. One of the proprietors, a Mario Zulli, returned and escorted at least one of the workers to the exit. On any view, there followed something of a fracas between Mr Zulli, on the one hand, and a number of the tradesmen in the mall outside the premises.
In the meantime, a barman at the Club called Anthony had been despatched to clean up some broken glass at the entrance to the premises. He attended with a dust bin on a long handle, together with a dust brush. His evidence was that he looked from the entrance out to the fracas taking place in the mall. He noticed that his uncle, Mr Zulli, was being set upon by other people and he went to his assistance. Mr Lamble, at least at this point, was not involved in the fray. He was standing to one side and, it seems, looking elsewhere. The barman, however, approached him and swung the dustpan at his head so that Mr Lamble fell to the ground, and suffered significant head injuries.
The barman subsequently pleaded guilty to a charge of assault occasioning bodily harm. Mr Lamble, however, did not bring any civil proceedings against the barman but only against Howl at the Moon. He contended that the bar was negligent in failing to properly supervise the barman or, alternatively, it was vicariously liable for his conduct.
The first claim was dismissed by the Trial Judge, Justice Douglas. He held that the barman had been specifically instructed to leave security to the bouncers, and that, in any case, given his impulsive reaction to what he saw, it was unlikely that any lack of direction would have been causally related to the incident.
His Honour found, however, that the Hotel was vicariously liable for the conduct of the barman. That determination involved a detailed consideration of the law concerning vicarious liability.
In that regard, the key issue became whether or not the conduct of the barman in assaulting Mr Lamble was sufficiently connected to his employment. The Defendant had the benefit of certain factual matters namely:
(a) The barman had the conventional duties that go with that position of serving drinks, cutting fruit etc;
(b) A number of bar staff as well as a security guard gave uncontested evidence that bar staff had never been involved in crowd control;
(c) The assault occurred outside the Defendant’s premises;
(d) The assault was, of course, an illegal act;
(e) The barman said that he acted impulsively to assist his uncle;
(f) An independent witness gave evidence that the barman’s attack on the Plaintiff appeared to be senseless, disproportionate and unprovoked, at a time when the Plaintiff was not involved in any way in the fracas occurring outside.
As noted earlier, the Trial Judge found that there had been an express direction from the bar proprietors to the barman and to other staff that they were not to become involved in crowd control issues but, rather, was to seek out security.
In the event, and notwithstanding those arguments, the employer was found liable, and that finding was upheld on appeal. In particular, the Court of Appeal found that:
(a) Whilst there was a direction to the barman that he should not engage in security, it was not clear that the direction applied to all circumstances. The Court found that, whereas here, the security guards were occupied elsewhere, in detaining the other rogue tradesmen, the barman was acting in the course of his employment in assisting the bar proprietors.
(b) Since the effect of his conduct was to rescue another staff member and to stop a fight which must have been bad for goodwill, the conduct was in furtherance of the Defendant’s interests.
(c) In circumstances where the bar created the environment for the dispute, by selling alcohol late at night, and the fracas involved patrons recently ejected from the bar, the conduct of the barman was sufficiently connected to his employment.
Queensland Bars and Hotels should take note that they may well be found liable for assaults by their staff on patrons on the basis that the acts come within the scope of their employment, even if they have specifically excluded crowd control from their duties. Indeed, it seems that, even if the conduct is misdirected, it may be enough that one of the effects (as opposed to purposes) of the conduct was to benefit the employer.
That is a matter of some moment. Insurers will generally prefer to cover Hotels and Clubs for which there are security subcontractors. The intention, of course, is to use the independent contractors to quarantine the insurer from the vexed issues concerning crowd control (as was done successfully in Orcher’s case). Given the decision in Howl at the Moon, that may not be a sufficient safeguard. There would need to be a direction that employees not involve themselves in crowd control in any circumstances — that is, even in an emergency – and there should be such numbers of security guards that there is never an occasion where the staff need to intervene.
As noted earlier, there are any number of cases in which Hotels have been found liable for violence committed against a patron. Those cases differ from Howl at the Moon in that, for them, the perpetrator was usually a security guard engaged by the Hotel, so that it might properly be said that crowd control was part of the perpetrator’s employment. Obviously, where the security guard is an independent contractor, there can be no vicarious liability.
Patrons suing Hotels; the different classes
It seems to me that Howl at the Moon falls within one class of cases in which a Hotel might be sued by a patron. If we call that first class Harm Caused by Hotel Staff or Security then a second might be Negligence by a Hotel in Supplying Alcohol. A third might be Negligence by the Hotel in Failing to Supervise Conduct between Patrons. And a fourth might be Occupier’s Liability.
Some Practical and Introductory Remarks
Can I say as a practical issue in all of these classes that it will be relevant to ascertain the extent to which the Plaintiff was affected by alcohol at the relevant time?
You will be aware that sections 46 to 49 of the Civil Liability Act 2003 deal with alcohol and its relationship to negligence claims. Section 46 provides in effect that no greater standard of care is owed because a person may be intoxicated. Section 47 relevantly provides that there will be a presumption of contributory negligence on the part of a Plaintiff if the Plaintiff is intoxicated at the time an alleged breach of duty occurred of at least 25%. There are at least four points that should be made about those provisions.
The first is that section 46 does not apply to licensed premises: that is, conceivably, a higher duty of care might be expected if you appreciate that people are habitually drinking there. The second is that the better view is that the presumption will not work against a Plaintiff who is injured by an intentional tort. That is because the relevant provisions of the Civil Liability Act 2003 deal with breaches of duty, rather than intentional torts: Corliss v Gibbings-Johns [2010] QCA 233. The third point to make is that the definition of “intoxicated” in the Civil Liability Act 2003 is that a person is “under the influence of alcohol or a drug to the extent that the person’s capacity to exercise proper care and skill is impaired” so that a defence lawyer will need to ask the Court to draw an inference from peoples’ observations or to obtain a blood alcohol reading. The second possibility is obviously much less subjective but it is difficult to come across. The fourth point is that the statutory presumption sits alongside, of course, the common law doctrine of contributory negligence.
I would add, incidentally, that the law stipulates that the standard of care for contributory negligence is not to be modified on account of drunkenness. One well appreciates that, where you are dealing with certain characteristics such as youth, the duty might be assessed by that cohort: See McHale v Watson (1964) 111 CLR 184. If, however, you slide down a bannister or ride freestyle on a car roof, you cannot contend that it was normal for your state of intoxication: see French v QBE [2011] QSC 105 at [175].
I would also add that, having regard to rule 150 of the UCPR, you are likely to be prevented from running a contributory negligence argument if it has not been specifically pleaded.
I was recently engaged for a Council being sued by a pedestrian. The pedestrian, on his own version of events, had 10 to 20 XXXX Gold pots and walked home before slipping on steps to a Council underpass. There were some vague allegations that the stairway was in bad condition but the story seemed rather implausible, particularly where it involved binge drinking on mid-strength beer, and walking home in the rain wearing thongs manufactured by R M Williams.
I had my instructing solicitor brief a pathologist, a Dr Hoskins, to provide a report on whether or not the Claimant was intoxicated. When the report came back, it was in two sections. The first section looked much like my childrens’ homework. It took into account a number of variables and then calculated that, if a man weighing X kilograms drank Y beers over Z hours, he would have a certain BAC. It was clear that the extent of any intoxication would depend on the final state of the evidence.
The second section of the report was much more exciting. The doctor said, in effect, that whilst he had been asked to speculate on a range of possibilities, he no longer saw the need. When he looked at the hospital records provided, there were some pathology results obtained immediately after the Plaintiff’s admission. The doctor explained that, translated for lay people, they show that the Plaintiff had a BAC of .17 at the time of the accident! I received the report under cover of a rather gleeful email from my instructing solicitor. It read:
   “Hi Damien.
Suspect this is what you were after … I believe the layman’s interpretation of Dr Hoskin’s findings is that the Plaintiff was ‘pissed as a fart’. Also acceptable is ‘two sheets to the wind’, ‘blind’, ‘legless’, ‘gone’, ‘FUBAR’ or ‘munted’.”
The claim did not proceed further.
In short, it should be appreciated that establishing that the Plaintiff is intoxicated has at least two useful purposes. The first is that it invokes the statutory presumption for contributory negligence. The second perhaps is that the Plaintiff’s version of events becomes far more tenuous if it can be established that he or she was in no state to act prudently or remember what happened.
I would add that, where you have a Plaintiff who alleges negligence arising out of a Hotel incident, special scrutiny of a quantum claim will often be rewarding. I ran a trial for the Beetle Bar near Petrie Terrace called O’Connell v First Class Security [2012] QCD 100. The Plaintiff was a backpacker from Liverpool. He had been behaving badly and two police officers were called to the premises. They held the Plaintiff but it was the bouncer’s impression that the Plaintiff was about to wrestle free. The bouncer — who was a Maori and also a rugby player — executed a glorious covering tackle which, unfortunately, broke the Plaintiff’s femur. We resisted the claim on liability and quantum but we were unsuccessful on the first ground, particularly in circumstances where the two police officers were not prepared to concede that they were having trouble with the Plaintiff. The medical records from England, however, disclosed that the Plaintiff had a longstanding problem with alcohol and other drugs. Against that background, he was awarded only $8,600.00 for general damages and $6,000.00 for past and future economic loss!
Negligent Supply of Alcohol
I spoke earlier about a class of cases where a Hotel might be sued for supplying alcohol to a person until they become drunk. I should say that such a cause of action will be very hard to sustain on the current state of the law.
The high point, in Queensland at least, was a case called Johns v Cosgrove [2000] QCA 157. At first instance, Justice Derrington found the Chevron Hotel at Surfers Paradise liable. The Hotel was of course situated between two major arterial roads. The Hotel staff were aware that the Plaintiff was in the habit of attending the Hotel, drinking heavily and then walking home through traffic. When he was run over on the subject occasion, Justice Derrington found that the Plaintiff was 45% liable, the motorist 30% liable and the Hotel 25% liable. Interestingly, the decision was set aside on appeal but only because it emerged that the Plaintiff had paid a certain witness to give evidence. It is a particularly useful authority for those who find, shortly after a trial, that the Plaintiff has been fraudulent.
In Cole v South Tweed Heads Rugby League Football Club (2003-2004) 217 CLR 469, the High Court was concerned with a claim by a lady who had attended a football function. I should say that I was attending a lunch recently when a mate said to me that he intended “to get drunk, not rugby league drunk, but pretty drunk”. Mrs Cole adopted a similar approach. She started drinking at 9.30 am. The Club seems to have sold her a bottle of spumante at 12.30pm (which she was seen to drink from the bottle and on her own). She was “absolutely drunk” by 1.45pm. She was refused alcohol at 3.00pm and she had become so obnoxious at 6pm that she was asked to leave. She was offered safe transport home in the Club’s courtesy bus but she declined in rather blunt crude terms. As she walked home at 6.20pm, however, with a BAC of .238, she was hit by a car and badly injured.
Mrs Cole sued both the motorist and the Club, and was successful against each with a finding of contributory negligence (30%; 30%; 40%). The Club appealed and was successful. Mrs Cole then appealed further to the High Court. For her it was contended that the Club should have declined to allow Mrs Cole to leave or should have compelled her to travel home safely, or it should have ceased serving her alcohol. The High Court might easily have decided the matter on the relatively narrow basis that any duty of care had been discharged when the Club offered Mrs Cole a lift home. Alternatively, it might have found that the causal link between the negligence and the loss was severed because it could not be shown that any steps taken by the Club would have prevented the accident. Whilst Gummow and Hayne found for the Club on the latter basis, they cast real doubt on the existence of the duty and Gleeson CJ and Callinan J found that, in all but exceptional cases (eg, the patron is too drunk to make a rational choice), a Club or Hotel does not owe a duty of care to Plaintiffs to protect them from intoxication and its possible consequences.
There is a more difficult manifestation of the issue in the case of Scott v C.A.L. No. 14 Pty Ltd [2009] TASSC 94. That was a Lord Campbell’s Action. The deceased had arrived at the Defendant Hotel in a “funk”. He had provided the Hotel with the keys to his motor bike and he had proceeded to get very drunk (he was later found to have a reading of .253). As the night wore on, the Publican offered to arrange for the deceased’s wife to collect him but he responded by saying “If I want you to call my wife, I’d fucken ask ya”. The deceased later asked for the keys to his motor bike and they were duly given to him by the Publican. He fishtailed down the driveway, drove 7 kilometres and then died in a crash. Blow J dismissed the claim on the basis that there was no relevant duty of care. On appeal, the Chief Justice indicated that he preferred the view of Gleeson CJ and Callinan J in Cole (to the effect that no relevant duty existed), and he found squarely that there was no duty on a pub to withhold the keys. It should be said that the balance of the Court allowed the widow’s appeal. They found that a duty of care was owed and that the Hotel did not take sufficient steps to discharge it.
The matter came before the High Court in C.A.L. No. 14 v Scott (2009) 239 CLR 390. The claim was dismissed and the headnote records the ratio of Gummow, Hayne, Heydon and Crennan JJ:
“Outside exceptional circumstances, the proprietor and licensee of licensed premises, while bound by important statutory duties in relation to the service of alcohol and the conduct of premises in which it is served, owe no general duty of care at common law to customers which requires them to monitor and minimise the service of alcohol or to protect customers from the consequences of alcohol they choose to consume.”
The upshot is that it is now very clear that, in the absence of very special circumstances, a Hotel proprietor has no duty to protect patrons from intoxication and its consequences. A finding in the patron’s favour will be more likely where he is incapable of making a rational decision or where the pub has some control over the means of departure.
Attacks by One Patron on Another
As mentioned earlier, a third class of cases will be those where one patron harms another.
In Modbury Triangle Shopping Centre v Anzil (2000) 205 CLR 254), where the Plaintiff was attacked and injured while making his way through an outdoor car park in a shopping centre, the claim failed because it was held that the occupier could have no control over the criminal conduct of a third party. It was noted in Chordas v Bryant (Wellington) (1988) FCA 462, however, that a Hotel could be liable for an attack by one patron upon another if the first patron was known to be difficult or aggressive when intoxicated. A similar result was reached more recently in Spedding v Nobles [2007] NSWCA 29. That was because Hotels are considered to exercise real control over their patrons.
For those decisions where one patron has been assaulted by another, it will be relevant to consider whether the Hotel had knowingly or recklessly supplied the intoxicated patron with alcohol beyond a responsible point or otherwise failed to remove a threat. Livermore v Crombie [2006] QCA 169, for instance, is a case concerning the Eimeo Hotel in Mackay. Two brothers became embroiled in an argument with a patron because they considered he had looked at one of their partners. The incident was defused and the Hotel continued to serve the two brothers. About 30 minutes later, one of the brothers king-hit the Plaintiff and he was badly injured. He sued the Hotel alleging that it should have evicted the brothers after the verbal argument. The Trial Judge held rather robustly:
“Common sense suggests that if every patron of a hotel who exchanged a cross word with another patron over some perceived slight was ejected on the off chance that they might later launch an unprovoked and unexpected attack upon somebody entirely different, many such establishments would be largely empty.”
An appeal was dismissed because the members — led by Keane JA — held that reasonable care did not require at the earlier point that the brothers be ejected.
In Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 29, a New Year’s Eve function was being held at a reception centre in Punchbowl. I asked my wife – who is Lebanese – to read the judgment and she noted that the function was unusual in that (although it was not the subject of judicial comment) she could see from the names that it was attended by both Muslims and Christians. In any case, there was a physical altercation over a girl called Leila and the assailants then left the function centre before returning to shoot the Plaintiff. He contended that the Hotel was negligent in failing to arrange sufficient numbers of security staff.  On the basis of Modbury Triangle Shopping Centre v Anzil, the Palace contended that it did not owe a duty of care to prevent the criminal conduct of others and submitted that no exception should be made for licensed premises, particularly he was not intoxicated.
The Court held a duty could be owed by a Hotel in the circumstances. In short, the Trial Judge held that Adeels Palace owed a duty of care to patrons at the New Year’s Eve function to take reasonable care to guard against injury from other patrons (whether the conduct of the latter was criminal or not). The Trial Judge found that the security arrangements were inadequate and materially contributed to the injuries.
One might wonder if an unarmed security guard might have prevented injuries by firearms and the Appellant raised that argument in the Court of Appeal. That Court held, however, that the Trial Judge was entitled to find that the use of force against the security staff was quite unlikely.
When the matter went to the High Court, it affirmed the principle that Adeels Palace owed a duty of care to prevent injury to patrons from violent, quarrelsome or disorderly conduct. In the event, however, the decision was overturned (that is, the claim failed) on the basis that it could not be shown that the presence of a security guard at the door of the restaurant or on the floor of the restaurant, would necessarily have deterred the assailant. See also Cregan Hotel Management v Hadaway [2011] NSWCA 338, Portelli v Tabriska Pty Ltd [2009] NSWCA 17 at [60] and Rooty Hill RSL v Karimi [2009] NSWCA 2 at [33] — [35]. In Portelli, in particular, the President of the Court of Appeal doubted a finding of the primary Judge that the duty of care to protect against the criminal conduct of patrons could not extend to the public street. See also Day v Ocean Beach Hotel [2013] NSWCA 250.
In Orcher v Bowcliff (supra) at first instance, the Trial Judge found that, when a glassie crossed the road to strike another person in a gratuitous attack, the actions were borne of some unknown and unexplained personal animosity with no relevance to Mr Paseka’s employment or his employer’s interest so that a claim based on vicarious liability failed. The Judge found, however, that a security guard employed by an independent contractor, Mr Paya, should have intervened in the “developing situation” across the road and the Hotel was found liable. The Court of Appeal in Orcher’s case accepted that the Hotel by its staff owed a duty of care to prevent harm to patrons of the Hotel but it found that the assault occurred without warning so that, considering a possible breach prospectively rather than retrospectively, it could not be concluded that the security company was liable. The Hotel succeeded on the further basis that the security guard was not employed by it.
I should say incidentally, that the line between Modbury Triangle, on the one hand, and cases like Adeels Palace, on the other hand, is not a bright one. In Karatjas v Deakin University (2012) 35 VR 355, the Defendant was found liable when an employee of a subcontractor in the cafeteria was attacked while walking to the University car park. The Court of Appeal in Victoria held that the University would not be liable merely because it was an occupier to guard against the risk of criminal attacks. It relevantly held, however, that the facts were distinguishable from Modbury Triangle because the University already had the relevant duty under section 26 of the Occupational Health & Safety Act 2004. The Court buttressed that argument by reference to Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16, and the University’s exclusive control over the means of entry and exit to the place of work (as opposed to its position as the occupier of the campus).
Occupier’s Liability
Again, these cases illustrate the importance of establishing — for substantive and credit purposes – that the Plaintiff was intoxicated.
A case in which I was involved, Kelly v Trentham Holdings [2012] QDC 141, is an example. I acted for the Chalk Hotel. The Plaintiff attended a tradies’ end of year Christmas party where alcohol was supplied. Her partner had been evicted and she accompanied him. Inexplicably, long after the time of eviction, and well after the couple had been shown the way to the Stanley Street cab rank, the couple were still wandering outside on the Hotel premises. His Honour Judge Dorney had great trouble in believing either the Plaintiff or her partner, particularly having regard to the heavy state of intoxication of the latter. The Plaintiff mysteriously crossed a garden bed and fell down an embankment in a side area to the Hotel which led nowhere. His Honour Judge Dorney concluded:
“I find that it was not within the contemplation of any ordinary, rationale person that a reasonably well lit area of ground over which bark had been placed and beside which a stairway had been constructed and the front of which was a hard surface paved car park would be the avenue to take as being an appropriate and safe access way to anywhere …”.
The claim was dismissed. The Court accepted that the risk was obvious, the duty of care had been discharged, and that, given that the Plaintiff had no recollection of the accident, she could not discharge the onus of proof in section 14 of the CLA (relating to obvious risk).
Another case is Sims v Farquhar Corporation Pty Ltd & Anor [2006] QDC 301. I acted for the Caxton Hotel. It was Melbourne Cup day. Mrs Sims was 150 cm tall and 72 years old. She was wearing two to three inch high heels as she sat on a stool to play the poker machines. As she went to alight from the stool, she fell and injured herself. She alleged that the Hotel was negligent in not designing lower stools or providing a step up. The claim was dismissed on the grounds of a finding that Mrs Sims simply caught her heel in the foot rest to the stool and that the stool was not unstable.
The Plaintiff argued, inter alia, that there should have been a step in front of the stool to assist climbing up and down from the seat. In response, it was argued for the Hotel, of course, that having steps in the vicinity of the chairs was likely to pose its own risks for other patrons who were intoxicated and crossing the floor at the Hotel. In the event, Judge Forde noted that the claim in this regard was not pursed and he declined to find on that basis. The finding is a small illustration of the more central point that whether or not particular counter measures are warranted must be decided prospectively, having regard to the various risks of which the occupier might be aware.
Conclusion
The principles which emerge are as follows:
A Hotel may well be vicariously liable for the deliberate acts of its own staff engaging in crowd control, particularly if it can be found that their involvement was to further the employer’s interests or in consequence of an emergency. The risk of liability in security matters will, of course, be reduced if the Hotel engages adequate independent contractors so that the role clearly falls outside the purview of Hotel staff.
But for special circumstances, a Hotel does not owe a duty of care to prevent intoxication, or its consequences, in patrons.
A Hotel may be liable for the criminal acts of one patron against another (whether fuelled by intoxication or an independent propensity to violence), notwithstanding cases such as Modbury Triangle, because Hotels are considered to have a particular level of control.
In such cases, however, the Plaintiff will need to establish that the Hotel should have been aware of the relevant danger, and that the proposed counter measures would have prevented the injuries.
In cases of occupier’s liability, the standard of care expected of patrons will not be lowered because they are intoxicated.
Further, and in any case, the arrangement of the Hotel premises should be judged prospectively and by reference to all risks.
A Defendant should always be careful to plead contributory negligence because, otherwise, it will be precluded from running the argument at trial.
Whenever you are involved in Hotel litigation, you should be diligent to establish the Plaintiff’s level of intoxication. That will be relevant to challenging the Plaintiff’s version of events on liability. It will also be relevant for the purpose of invoking the statutory presumption of contributory negligence.
The test for contributory negligence is an objective one which is not diminished by reference to the Plaintiff’s state of intoxication.
You will be well-advised to check whether the Plaintiff has a history of alcohol or drug abuse that might affect the quantum of the claim.
Damien Atkinson
