A new line in the sand with Bondi venue and security company found to equally share responsibility over a violent encounter with bar patrons at a licensed venue

In brief: The NSW Supreme Court of Appeal recently delivered its judgment in the decision of Bondi Beach Foods Pty Ltd v Chadwick [2023] NSWCA finding that the primary judge had not erred in correctly characterising the duty owed by both Bondi Beach Foods and Crossguard and determined that the apportionment of 50/50 made by the primary judge was correct. 

Background

On 22 December 2017, Mr Martin and around five of his friends were drinking at a "VIP" table in the outdoor area of the Bucket List (Premises), owned and operated by Bondi Beach Food Pty Ltd (Bondi Beach Food). Crossguard Group Pty Ltd (Crossguard) were engaged by Bondi Beach Food to provide security services. 

CCTV footage confirmed Mr Martin and his friends arrived at the Premises at 5:03 pm. Evidence adduced at trial confirmed that Mr Martin and his group had been drinking alcohol earlier that afternoon prior to their arrival.  

Clinton Chadwick (Plaintiff), and his two friends arrived at the Premises at approximately 6:00pm. They walked past Mr Martin's table at approximately 6:01 pm. As they passed Mr Martin’s table, there was an interaction between the two groups. 

The Plaintiff's group then purchased three beers at the bar and tried to find a seat. They returned to Mr Martin's table at approximately 6:06 pm. There was another verbal interaction between the Plaintiff and Mr Martin. CCTV footage shoes Mr Martin gesturing to the Plaintiff that they should go outside to fight. 

At approximately 6:07 pm, two Crossguard marshals observed the interaction between the two groups. The Plaintiff then pushed Mr Martin which started the physical altercation that eventually led to the claim. The Plaintiff then seemingly attempted to punch Mr Martin in the face but was instead struck by Mr Martin with a bar stool. Mr Martin then proceeded to strike the Plaintiff a further three to four times before fleeing from the Premises (Incident).

As a result of the Incident, the Plaintiff sustained various physical and psychological injuries said to be caused by the negligence of both Bondi Beach Food and Crossguard. Specifically, the Plaintiff claimed that both had breached their respective duty of care towards him by:

1. Failing to take precautions to ensure that Mr Martin and his friends were controlled or evicted from the Premises before the assault took place and/or allowed to enter into the Premises; and 

2. Failing to intervene in the altercation between the Plaintiff and Mr Martin to prevent violence. 

Primary Decision 

At first instance, the primary judge, Elkaim AJ found that:

1. A licensee of a venue serving alcohol, and security guards employed to monitor such venue would, acting reasonably, take precautions to prevent foreseeable harm. The engagement of Crossguard by Bondi Beach Food was an acknowledgement of the risk and the need to take precautions. 

2. There was evidence of 'disruptive or aggressive conduct' by Mr Martin prior to the Incident  and there was no doubt that both Bondi Beach Food and Crossguard were aware, and failed to, manage the escalating situation appropriately. His Honour referred to the leading decision of Wagstaff v Haslam [2007] NSWCA 28 in which it was found that the degree of intoxication does not of itself give rise to a duty to take immediate steps to remove a person affected by alcohol from premises to protect other patrons, but rather that an element of either actual or constructive knowledge of something more (quarrelsome behaviour, for example) is required to trigger that duty.

3. Crossguard, knowing the nature of the Premises and that it was a busy period, supplied an inadequate number of security personnel in the circumstances. 

The primary judge entered judgment in favour of the Plaintiff and awarded damages in the sum of $200,706.40 allowing a 20% reduction on damages for contributory negligence on account of the Plaintiff's own actions. His Honour further concluded that both Bondi Beach Food and Crossguard had breached their duties equally and was satisfied that the Plaintiff's injuries were caused by their respective breaches. 

The Appeal

Bondi Beach Foods appealed the primary judge’s findings on breach of duty of care, causation, damages and contributory negligence. Crossguard cross-appealed on the same grounds and sought a lower assessment of contribution. The Plaintiff cross-appealed on damages.
The issues on appeal were that the primary judge erred in:

• His  findings of fact concerning the conduct of Mr Martin and his group including the inadequacy of the number and capacity of the security personnel present at the Premises and the way in which the Premises were monitored for signs of intoxication;

• Properly identifying the relevant risk of harm, specifically that a wider characterisation of the risk was accepted in the present circumstances 

• Identifying the nature and content of the duties of care owed by Bondi Beach Foods and Crossguard;

• Finding that Bondi Beach Foods and Crossguard breached the duty of care they owed to the Plaintiff;

• Finding that the Plaintiff had established causation and damage; and 

• His assessment of contributory negligence at only 20%.

Having regard to the evidence on appeal, Leeming JA (with Gleeson JA and Payna JA agreeing) found:

1. The primary judge had not erred in establishing the nature and scope of duty of care owed by Bondi Beach Foods and Crossguard. The Court emphasised the underlying issue was that there was a foreseeable risk of physical violence from patrons at the Premises. Bondi Beach Foods were required to take reasonable steps to put in place arrangements for the presence of security which it did by engaging Crossguard. 

2. Bondi Beach Foods and Crossguard were not negligent for failing to take precautions to ensure that Mr Martin and his friends were evicted from the Premises before the Incident. In support of this, the Court relied on the expert evidence which confirmed that Mr Martin had not displayed any signs of intoxication prior to the Incident. Accordingly, there was no reason for Bondi Beach Foods and/or Crossguard to remove Mr Martin from the Premises prior to the Incident nor would Mr Martin have left the Premises if his friends were removed.

3. At all material times, there were only four Crossguard RSA Marshals on duty, none of whom had attained their security licence so were not permitted to physically restrain or eject personnel from the Premises.  

4. The Court deemed that two licensed security guards ought to have been on duty. On account of there being no licensed security guards onsite, both Bondi Beach Foods and Crossguard were found to have breached their duty of care to the Plaintiff. 

5. For this reason, the Court did not consider that the primary judge had erred in finding that both Bondi Beach Foods and Crossguard's breach of duty was causative of the Plaintiff's injuries and maintained that the primary judge's apportionment on a 50/50 basis was correct. 

6. However, with respect to contributory negligence, the Court did not agree that a finding of 20% was sufficient. The Court took into consideration the Plaintiff's actions, specifically that his conduct in escalating the altercation and then attempting to punch Mr Martin materially contributed to him sustaining injury. Accordingly, the Court assessed the Plaintiff's contributory negligence at 50%.

With respect to the primary judge's allowance for future economic loss, the Court was not satisfied that the Plaintiff had met the criteria set out in section 13 of the Civil Liability Act 2002 (NSW) which stipulates that "(1) a court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumption about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury..." Noting that the primary judge had indicated that his post-traumatic stress disorder and psychological symptoms had resolved or were close to resolution, the Plaintiff had not provided a basis for an allowance under future economic loss.

Decision 

Accordingly, the Court allowed Bondi Beach Foods and Crossguard's appeal in part. The Court also dismissed the Plaintiff's cross-appeal and set aside the order made in the primary proceedings in respect to the damages awarded to the Plaintiff. Specifically, the Court ordered judgment in favour of the plaintiff against the first and second defendants in the amount of $112,941.50 rather than the sum of $200,706.40.

Significance of Decision

This decision highlights the significant overlap in the duties of care held by both venue operators and security companies. Specifically, venue operators and security companies must ensure that licensed and competent security guards are engaged and proper systems of security have been put into place, depending on the circumstances of each particular venue.
 
This decision also reveals considerations taken by the Courts when assessing contributory negligence and the standard which Plaintiff's are held to in order to satisfy section 13 of Civil Liability Act 2002 (NSW) for the purposes of claiming damages for future economic loss.