Background
On 22 December 2017, Mr. Clinton Chadwick (‘Chadwick’) sustained serious injuries after he was struck repeatedly with a stool by another patron (‘Martin’) at a venue operated by Bondi Beach Foods Pty Ltd (‘Bondi’). Another entity, Crossguard Group Pty Ltd (‘Crossguard’) had been engaged by Bondi Beach Foods to provide security services at the venue.
Chadwick commenced proceedings against Bondi and Crossguard pursuant to the Civil Liability Act 2002 (NSW), alleging that the defendants breached the duty of care owed to him by virtue of: –
a. Failing to take precautions to ensure that Martin, and those he was with, were controlled or evicted from the venue prior to the assault, given their exhibited signs of intoxication (‘the first route to liability’); and
b. Failing to intervene in the altercation between Chadwick and Martin so as to prevent the assault. In this regard, Chadwick alleged that had there been sufficient licensed security guards present prior to the incident, intervention to deescalate the situation would have been possible (‘the second route to liability’).
The defendants denied liability and filed cross claims against each other. Both defendants alleged contributory negligence on the part of Chadwick.
Case Background: Chadwick’s 2017 Pub Assault at Bondi Beach
The Court found in favour of the Plaintiff, awarding damages in the sum of $200,706.40 plus costs, after a reduction for contributory negligence of 20%.
With reference to Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, the Court conceived of the defendants’ duties as extending beyond the duty owed by an occupier to a lawful entrant, to include the duty to control “violent, quarrelsome or disorderly conduct on licensed premises”. The Court opined that liability flowed to the defendants on account of Martin and his associate’s obvious intoxication, along with the absence of “proper security staff, both as to numbers and capacity”.
As to apportionment as between the defendants, the court opined that they were equally liable, that is, 50% to both defendants.
Appeal
Bondi appealed against the findings of the primary judge in respect of duty, breach, causation, damages, and contributory negligence. Crossguard made a cross-appeal on the same grounds, whilst also seeking a lower assessment of its contribution. Chadwick also cross-appealed on the basis of the calculation of damages.
Decision
The Court of Appeal opined that the primary judge had not fallen into error in respect of their conception of the scope of Bondi and Crossguard’s duty of care. Whilst the Court did note that the primary judge had adopted a “slightly wider risk of harm”, this was not considered to be an error at law.
As to the ‘first route to liability’, the Court found that there was insufficient evidence to support the conclusion that Martin displayed obvious signs of intoxication prior to the incident, nor “unhibited behaviour” that could be considered aggressive or violent. Based on this finding of fact, the Court opined that the defendants failure to intervene prior to the incident, namely by taking steps to remove either Martin or one of acquaintances, was not negligent. In respect of Martin’s acquaintances, one of whom was seen to be stumbling on CCTV footage, the Court noted that even if that individual had been escorted off the premises, there was no guarantee that Martin would have himself left, assumedly avoiding the incident. For these reasons, the finding of liability in respect of the ‘first route to liability’ was overturned.
In respect of the ‘second route to liability’, the Court opined that the appeal had not been made out. Of note to the Court in this regard was the venue’s failure to not have at least two licensed security guards on duty at the time of the altercation, particularly in the context of a history of violence and intoxication at the venue. Of further note to the Court was the fact that the Crossguard employees that were present were not permitted, pursuant to the Liquor Act 2007 (NSW), to use physical force to remove the patrons from the venue.
The Court opined that the primary judge had erred in quantifying Chadwick’s contribution at 20%, and asserted that a reduction of damages in the sum of 50% was appropriate, given Chadwick repeatedly escalated the altercation through his actions.
The appeals with respect to the quantification of damages, along with Crossguard’s attempt to reduce their statutory contribution, failed.
In light of the above, judgment was entered in favour of Chadwick in the amount of $112,941.50.
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