A scuffle between patrons - Should
the Bowling Club be found liable?
Overview
When two patrons of the Ettalong Memorial Bowling Club (the Club) did not see eye
to eye and a scuffle broke out, the Club’s security was brought into question. This
article looks at Tilden v Gregg [2015] NSWCA 164 and the New South Wales Court
of Appeal’s decision as to whether the Club should be held liable for an assault upon
a patron by another patron.
Facts
On Sunday 28 February 2010, Ross Tilden (the appellant) was assaulted by Rolland Gregg at the Club. The appellant and Mr Gregg were both members of the Club and
had known each other for a number of years. At some time prior to 2001 a dispute
between the 2 men occurred involving the loss of funds raised by a darts club raffle. This dispute led to Mr Gregg developing significant animosity towards the appellant,
and he had previously made verbal threats towards him. On the night of the assault, the appellant and Mr Gregg were seated at separate
tables in an outside area of the Club. They had both consumed alcohol, but not to
the extent that the eviction of either man or the refusal to serve them further alcohol
was justified. Over a period of about 15 to 20 minutes before the assault, Mr Gregg
engaged in sporadic verbal abuse of the appellant. The appellant then made an
insulting remark to Mr Gregg which resulted in Mr Gregg punching the appellant in
the face, causing his head to hit the brick wall behind him. The Decision at Trial
The appellant commenced proceedings for assault against Mr Gregg and for
negligence against the Club in its capacity as occupier of the licensed premises. The
appellant obtained summary judgment against Mr Gregg, and his claim against the
Club was determined by North DCJ on 26 May 2014.
The appellant argued that the Club owed him a duty to take reasonable care to
prevent injury caused by the violent, quarrelsome or disorderly conduct of persons
at the Club. He argued that in order to discharge its duty of care, the Club ought to
have informed the duty manager and/or the security officer of Mr Gregg’s
propensity for violence and the need to increase the frequency of their inspections
of the area in which Mr Gregg was situated. The appellant also argued that a CCTV
camera should have been installed in the outside area of the Club as a deterrent for
violent behavior. He submitted that if these additional steps had been taken by the
Club, Mr Gregg would have been removed from the premises by the Club before the
assault took place, or he would have been deterred from acting as he did because of
the presence of staff or the visibility of his conduct to a CCTV camera. North DCJ accepted that the Club owed the appellant a duty to take reasonable
care to prevent him being attacked by other persons who are aggressive, but found
that the Club was not negligent in failing to take the further precautions that the
appellant had contended for. He also found that the Club was not negligent in
failing to have someone patrol the outside area more frequently, or in failing to
install a CCTV camera in the outside area. North DCJ was not satisfied that if any of
those precautions had been taken, the assault would have been prevented. This was
because the assault itself took place in a very short space of time, and some
sporadic abuse in the 15 to 20 minutes before the assault was only verbal in nature,
and no other aggressive actions were made by Mr Gregg until he struck the
appellant. Accordingly, the appellant’s claim against the Club was dismissed.
The Decision on Appeal
The Court of Appeal was asked to consider whether North DCJ erred in finding that
the Club had not breached its duty to take reasonable care to prevent injury from
violent or disorderly conduct by patrons, and whether he had erred in finding that
the appellant had not established factual causation. The appeal was unanimously dismissed by the Court of Appeal. Although it was
accepted that the Club knew that Mr Gregg could be argumentative and
quarrelsome, this did not make it necessary for the Club to instruct its staff to
increase their supervision of his behaviour. The Court of Appeal noted that whilst
there may be some circumstances in which it may be necessary for an occupier of
licensed premises to inform its staff of specific concerns about a patron based on
past behaviour, that was not the case here, as there had been no evidence of any
actual misbehavior by Mr Gregg at the Club prior to his assault upon the appellant.
The appellant’s argument that the installation of a CCTV camera in the outside area
would have deterred the type of conduct engaged in by the appellant was also
rejected. The appellant’s case was not that the camera should have been
continually monitored, but rather it was argued that the presence of a CCTV camera
would have been a sufficient deterrent to Mr Gregg’s behaviour. It was noted that
the assault happened suddenly and in circumstances where there were other people
in the vicinity of Mr Gregg and the appellant who would have witnessed the assault
in any event.
The Court of Appeal concluded that the “but for” test of factual causation was not
established. If more frequent inspections of the outside area by the duty manager
or security officer had taken place, this would not, on the evidence, have resulted in
them concluding that Mr Gregg ought to be ejected, and nor was it likely that the
presence of a CCTV camera would have prevented Mr Gregg’s assault upon the
appellant. The Court of Appeal observed that at its highest, the appellant’s case was
that further inspections and the presence of a CCTV camera might have resulted in
staff intervening or deterred Mr Gregg’s conduct, but that was not sufficient in
establishing factual causation. Impact of decision
The New South Wales Court of Appeal has affirmed the position established by the
High Court in Adeels Palace Pty Ltd v Moubarak [2009] HCA 48 that the liability of
an occupier of licensed premises will only be established if it can be proved that the
owner had direct knowledge of facts that required intervention and that additional
precautions would have (and not simply could have) prevented the incident from
occurring. Authors
Peter Murdoch
Phone: +61 7 3231 6369
Email: [email protected]
Sue Myers
Phone: +61 7 3231 6366
Email: [email protected]