Citation: Belinda McNally v Douglas Spedding AND Nicole Nobles v Douglas Spedding [2006] NSWDC 113
Court: District Court of New South Wales
Date: 19 June 2006
Judge(s): Neilson DCJ
Background
Two women were assaulted and injured in the early hours of 18 October 1998 at the Bald Faced Stag Hotel in Leichhardt. The defendant was the licensee and occupier of the hotel at all relevant times. The plaintiffs were patrons on the premises when the events unfolded.
The sequence of events was significant to the liability analysis. One plaintiff was first assaulted outside part of the hotel and had her watch stolen. She then entered another part of the hotel and reported the matter to a manager, requesting assistance. None was provided. Both plaintiffs subsequently left the hotel but were induced to re-enter another part of it in order to attempt to recover the stolen watch. It was during that re-entry that a gang of offenders subjected them to a serious assault.
The proceedings had a lengthy history. Finnane J originally entered verdict for the defendant after a first trial in 2003, having also assessed damages in case the matter went further. The Court of Appeal set that verdict aside and ordered a new trial limited to liability. The High Court refused leave to appeal. The re-trial on liability came before Neilson DCJ in November 2005, and the parties agreed that if the plaintiffs succeeded, judgment would be entered for the amounts Finnane J had assessed, together with interest.
Legal Issues
- Whether the hotel licensee owed a duty of care to the plaintiffs as patrons on the premises
- Whether that duty extended to protecting the plaintiffs from criminal acts committed by third parties
- Whether the risk of harm was foreseeable in the circumstances
- Whether the defendant breached that duty by failing to take reasonable precautions, including failing to respond to the plaintiffs' request for assistance
- Whether the plaintiffs' own conduct in re-entering the hotel contributed to their injuries (contributory negligence)
Decision
Neilson DCJ found in favour of both plaintiffs on liability. The court accepted the evidence of the plaintiffs and their witness, Mr Drennan, as honest, while exercising appropriate caution about reconstruction and rationalisation given the passage of seven years and, in the case of one plaintiff, a severe head injury with associated amnesia. The defendant called no oral evidence and tendered only one witness statement, which shaped the evidentiary landscape considerably.
The court found that the risk of harm to the plaintiffs was foreseeable in the circumstances. The defendant, as licensee and occupier, owed the plaintiffs a duty of care. That duty was breached when the hotel failed to respond to the plaintiffs' request for assistance after the first assault and theft, and when the circumstances were such that the plaintiffs were induced to re-enter the hotel in an attempt to recover the stolen watch, exposing them to the gang attack that followed.
On contributory negligence, Neilson DCJ expressed some disquiet. The court noted that its findings on foreseeability suggested the plaintiffs may have failed to appreciate the risk of further violence in re-entering the hotel. However, the defendant had run the case on an all-or-nothing basis and made no submission on contributory negligence. No evidence was canvassed on the point, no apportionment argument was put, and the plaintiffs had no opportunity to respond. The court held that in those circumstances the defendant was bound by how he had conducted his case, and no finding of contributory negligence was made.
Orders Made
- McNally v Spedding: Verdict and judgment for the plaintiff in the amount of $80,843 (being $64,340 in damages plus $16,503 interest at 9% per annum from 13 September 2003). Defendant to pay the plaintiff's costs. Liberty to apply for additional or ancillary orders.
- Nobles v Spedding: Verdict and judgment for the plaintiff in the amount of $540,750 (being $430,362 in damages plus $110,388 interest at 9% per annum from 13 September 2003). Defendant to pay the plaintiff's costs. Liberty to apply for additional or ancillary orders.
Key Takeaways
- A hotel licensee's duty of care to patrons can extend to protecting them from criminal acts by third parties where the risk of such harm is foreseeable in the circumstances of the particular case.
- Where a patron reports an assault to management and requests assistance, a failure to provide any response may constitute a breach of the duty owed to that patron.
- The District Court declined to find contributory negligence where the defendant had not raised the issue during the trial, had not adduced evidence going to it, and had made no submission on apportionment. To find contributory negligence in those circumstances would have denied the plaintiffs natural justice.
- Contributory negligence is a question of fact, not law. A court is not required to raise it of its own motion in the same way it might address an unargued question of law.
- Significant evidentiary caution is warranted where witnesses testify about events from seven years prior, particularly where one plaintiff sustained a serious brain injury affecting memory. The court distinguished between honesty and reliability, accepting the witnesses as truthful while remaining alert to reconstruction.
Legislation and Cases Referenced
Legislation:
- Liquor Act 1982 (NSW)
- Casino Control Act 1982 (NSW)
Cases:
- Oxlade v Gosbridge Pty Ltd (unreported, NSWCA, 18 December 1998)
- Bragg v RSL Henley and Grange Sub-Branch Inc [2003] SASC 226
- Blatch v Archer (1774) 1 Cowp 64
- Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254
- Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91
- Public Transport Corporation v Sartaric [1997] 1 VR 168
- Guildford Rugby League Football and Recreational Club Ltd v Coad [2001] NSWCA 139
- Ashrafi Persian Trading Co Pty Ltd t/as Roslyn Gardens Motor Inn v Ashrafinia [2001] NSWCA 243
- Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447
- South Tweed Heads Rugby League Football Club Ltd v Cole (2002) 55 NSWLR 113
- Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469
- Proprietors of Strata Plan 17226 v Drakulic (2002) 55 NSWLR 659
- Lanahmede Pty Ltd v Koch [2004] SASC 204
- TAB Ltd v Atlis [2004] NSWCA 322
- Wagstaff v Haslam [2006] NSWSC 294
- Preston v Star City Pty Ltd [1999] NSWSC 459
- Coulton v Holcombe (1986) 162 CLR 1
- Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631