Citation: Nicoll v Dobeson; Nicoll v The Workers Compensation Nominal Insurer (No 3) [2014] NSWDC 109
Court: District Court of New South Wales
Date: 16 July 2014
Judge: P Taylor SC DCJ
Background
A female security guard employed by a contracted security firm was assaulted by two intoxicated male patrons while escorting them from an RSL club after one of them had earlier assaulted another patron. The assaults included groping, grabbing around the neck, and sustained verbal abuse of a threatening and sexualised nature. The two patrons had been convicted of the assault in criminal proceedings and did not contest liability in the civil action.
The security guard brought proceedings against the two patrons, the RSL club (the licensed premises), and the insurer of her employer, the contracted security firm. The insurer admitted liability. Only the club contested its own liability.
The central question was whether the club, as the occupier of licensed premises, owed and breached a duty of care to the security guard as a contracted worker on its premises, and whether that breach caused her loss.
Legal Issues
- Whether the club owed a duty of care to the contracted security guard while she was working on its premises
- Whether the club breached that duty by failing to take reasonable precautions against the foreseeable risk of assault by the patrons
- Whether any breach by the club caused the plaintiff's loss
- Whether the plaintiff was contributorily negligent
- The appropriate measure and heads of damages, including whether exemplary or aggravated damages were warranted
Decision
The court found in favour of the club on the negligence claim. Applying the principles in Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, the court held that while a licensed premises operator may owe a duty of care to persons on its premises, liability for the criminal acts of third parties requires careful analysis of foreseeability and causation. The assault arose from a spontaneous personal grievance brought to the club by one patron, rather than from any atmosphere or pattern of violence that the club had failed to address.
On foreseeability, the court accepted that there had been one prior incident involving the same patron, but found the evidence of prior conduct insufficient to establish that the club knew or ought to have known that these particular patrons posed a real risk of assault to security staff. The initial altercation between the patron and a third party was not so serious or foreseeable an escalation as to put the club on notice that its security arrangements were inadequate.
Even if a duty and breach could be established, the court found that causation presented an insuperable obstacle. Under section 5D of the Civil Liability Act 2002, the plaintiff could not demonstrate that additional precautions by the club would have prevented the harm. The assault was the product of the criminal conduct of the patrons and, on the evidence, the club's response, including the involvement of its duty manager and security staff, was not shown to have fallen below the standard required.
The plaintiff succeeded, however, against the two patrons directly. Judgment was entered for $139,000.44 against them, comprising economic loss and a substantial non-economic loss component. The court declined to award exemplary damages because the patrons had already been punished through the criminal justice system. Aggravated damages were also refused, as neither patron had engaged in conduct after the assault that further aggravated the plaintiff's loss.
Orders Made
- Judgment in favour of the club against the plaintiff (negligence claim dismissed)
- Verdict for the plaintiff against the insurer of her employer in the sum of $28,610.44
- The verdict sum noted to be less than the agreed payback amount
- Judgment in favour of the insurer against the plaintiff
- Judgment in favour of the plaintiff against the two patrons in the sum of $139,000.44
- Matter to be relisted for orders disposing of outstanding cross-claims and costs
- Entry of orders deferred until 30 July 2014
Key Takeaways
- The District Court confirmed that a licensed premises operator is not automatically liable for assaults on contracted security workers by patrons; the Adeels Palace framework requires close analysis of what the operator actually knew or foresaw about the risk posed by specific individuals.
- A single prior incident involving a patron may be insufficient, on its own, to establish that a venue had notice of a foreseeable risk of assault serious enough to require additional precautions.
- Causation under section 5D of the Civil Liability Act 2002 remains an independent and demanding hurdle: even where some breach might be arguable, a plaintiff must demonstrate that different conduct by the defendant would have prevented the harm.
- Exemplary damages are unavailable against defendants who have already been convicted and sentenced in criminal proceedings for the same conduct, consistent with Gray v Motor Accident Commission (1998) 196 CLR 1.
- Where contracted workers (rather than direct employees) are injured on licensed premises, the liability of the premises operator and the liability of the contracting employer's insurer are assessed separately, and the outcomes may diverge significantly.
Legislation and Cases Referenced
Legislation:
- Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D
- Liquor Act 1982 (NSW), ss 5, 103, 124, 125
Cases:
- Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48
- Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61
- Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70
- Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; [1986] HCA 1
- Wagstaff v Haslam (2007) 69 NSWLR 1; [2007] NSWCA 28
- Collingwood Hotel Pty Ltd v O'Reilly [2007] NSWCA 155
- Balesfire Pty Limited v Jamie Adams [2006] NSWCA 112
- Davis v Nolras Pty Ltd [2005] NSWCA 379
- Sydney Water Corporation v Abramovic [2007] NSWCA 248
- Wooby v Australian Postal Corporation [2013] NSWCA 183