Failure to eject unruly hotel patron not a breach of duty of care
by David Miller, Goce Mitrevski and Amy Malaquin
In brief - Respondent fails to establish liability or contributory negligence
In Cregan Hotel Management Pty Ltd & Anor v Hadaway  NSWCA 338, the NSW Court of Appeal found that failure to eject an unruly patron who later assaulted another patron away from the hotel did not amount to a breach of duty. The decision highlights the need to examine factual circumstances.
Two altercations at hotel premises
On 17 September 2004 Mr Hadaway, the respondent, was drinking at the Hoey Moey Hotel in Coffs Harbour. Mr Robinson was also at the hotel. Two altercations occurred on the hotel premises between Mr Robinson and Mr Hadaway, one at 5pm and another at 5.30pm.
On both occasions they were separated and moved by hotel staff to different areas of the hotel. Mr Hadaway left the hotel a number of hours after the 5.30pm altercation. He was subsequently assaulted by Mr Robinson about two hundred metres from the hotel premises and suffered serious injury.
District Court proceedings against assailant, hotel, licensee and security company
Mr Hadaway brought proceedings in the District Court against Mr Robinson, Cregan Hotel Management Pty Ltd, the licensee/manager of the hotel and the security company which supplied guards to the hotel. The claim against the security company was discontinued. The trial judge, Levy DCJ, found Mr Robinson liable for assault and battery, with damages to Mr Hadaway for $1,161,368.
The Cregan Hotel and the licensee/manager (together the appellants) were also found to be liable to Mr Hadaway in negligence, with damages assessed at $922,394. The appellants made a cross-claim against Mr Robinson, for which Levy DCJ found they were entitled to a 70% contribution by Mr Robinson.
Court of Appeal finds breach of duty of care not established
The appellants appealed as to liability, contributory negligence and damages. Giles and Basten JJA found that breach of duty of care was not established and the judgment of the primary judge should be set aside. Allsop P concurred with their decision.
Giles JA found the primary judge incorrectly concluded that Mr Hadaway was ejected from the hotel and this factual finding was central to the trial judge's reasoning as to breach of duty of care . Giles JA found that Mr Hadaway had left the hotel voluntarily some hours after the altercations had taken place.
Reasonable to separate hotel patrons after altercation
Giles JA noted that the expert evidence led by the respondent regarding industry practice was only a guide in relation to protecting the safety of patrons of a hotel. He observed that reasonableness depends on, "the appropriate control of human responses of two men known to the hotel staff and security guards....(and) that does not attract a stereotyped response to the risk of injury".
Giles JA found that it was a reasonable response to separate Mr Robinson and Mr Hadaway within the hotel after the first altercation at 5pm. Giles JA remarked that the ineffective separation which occurred at 5pm cast doubt on the efficacy of a second separation after another altercation at 5.30pm, but it did not exclude the possibility that such a reinforced separation would be effective .
His Honour was not satisfied that the second separation and continued presence of Mr Robinson and Mr Hadaway in the hotel was unreasonable. Further, he noted that the second separation was in fact a success, as there were no further altercations until both individuals had left the premises.
Giles JA concluded that it had not been established that the appellants were in breach of the duty of care owed to Mr Hadaway by not ejecting Mr Robinson, or both Mr Robinson and Mr Hadaway, from the hotel premises after the second altercation at 5.30pm.
No continuing duty to monitor behaviour of patrons
Basten JA agreed with Giles JA that the separation of Mr Hadaway and Mr Robinson did not constitute a breach of the hotel's duty of care. Nor did it give rise to a continuing duty to monitor the behaviour of Mr Hadaway and Mr Robinson whilst they were in the hotel and also at the time of their departure.
Basten JA concluded that without a continuing duty and subsequent breach, it is unlikely that Mr Hadaway could establish that the failure to eject Mr Robinson at an earlier time was the cause of the later assault.
Basten JA held that in order for Mr Hadaway to succeed, he would have to establish that responsible staff in the hotel knew or ought to have known that at the time Mr Hadaway left the hotel premises, there was a real risk of him being pursued and attacked by Mr Robinson.
Secondly, they would have had to establish that Mr Hadaway left the premises when he did and thirdly, that Mr Robinson knew, or was in a position to know, when Mr Hadaway left the hotel premises .
His Honour observed that if those elements had been established by Mr Hadaway, the question would then arise as to what steps could have been reasonably taken to protect him after he left the premises, or in preventing Mr Robinson from leaving the hotel.
Basten JA distinguished the current proceedings from prior Court of Appeal decisions in Karimi and Portelli, first by remarking that Mr Hadaway had not been ejected from the premises and secondly, that his departure had not been supervised .
Liability hinges on specific circumstances, not industry standards
The court's decision highlights that the circumstances of the patrons and the judgment of the staff involved in managing an altercation is critical to a determination on liability. Giles JA was careful to note that whether such judgment was reasonable or not depends on the circumstances of a situation, rather than an industry standard.