Case Notes - Adeels Palace Pty Ltd v Moubarak - Torts A PDF

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Torts A SP2 2018

Case Notes – Adeels Palace Pty Ltd v Moubarak  

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Section 2A of the Liquor Act 1982 (NSW) ss 2A, 103 & 125(1) Section 51 of the Civil Liability Act 2002 (NSW) ss 5B, 5C & 5D o Person not negligent in failing to take precautions against risk of harm, unless:  Risk is foreseeable  Risk is not insignificant  A reasonable person in the person’s position would have taken those precautions As such, the Court was to consider: o The probability that the harm would occur if care had not been taken o Likely seriousness of the harm o Burden of taking precautions to avoid risk o Social utility of the activity that created risk of harm Live issues were whether a duty of care is owed to prevent harm, whether there was a breach of that duty, and whether the breach was a cause of the damage suffered Adeels Palace argued that (with Modbury Triangle Shopping Centre as authority), they did not owe a duty to those attending his premises to avoid criminal conduct by third parties, and even if it did owe a duty of care, the reasonable response of the violent behavior earlier in the night was not shown to be to employ more security. Plaintiffs raised that by entering the restaurant under a contract, and that under the Trade Practices Act, Adeels Palace impliedly warranted the services it provided would be done with due care and skill Civil Liability Act – The Liquor Act – obliged a licensee not to perform any indecent, violent or quarrelsome conduct (S 125(1)(b)). Also permitted a licensee or employed to refuse to admit to premises or turn away and person who is violent, quarrelsome or disorderly (s 103(1)(a)). Permitted the use of such reasonable degree of force as may be necessary to turn a person out (s 103(3A). Obliged a member of the police force, asked by the licensee or emplowyee to turn out a person whom the licensee is entitled to turn out (s 103(4)). ‘Liquor harm minimization is a primary object of this Act’.

WHETHER A DUTY OF CARE EXISTS 

Modbury Triangle Case – question of duty in this case focused on defendant’s position as occupier in controlling the physical state of the land o Adeels Palace case is distinguished from Modbury Triangle case  Complaint that occupier failed to control access to land  Licensed premises where liquor was sold, therefore care must be taken to avoid misuse and abuse of liquor, and harm arising from violence  The duty that rests on the occupier is to take reasonable care to prevent occurrence of events which, under the Liquor Act, the licensee was bound to prevent (violent, quarrelsome or disorderly conduct)

Torts A SP2 2018

Case Notes – Adeels Palace Pty Ltd v Moubarak  

As such, Adeels Palace owed, to the plaintiffs, a duty to take reasonable care to prevent injury to patrons from violent conduct of other persons It is a duty to take reasonable care in the conduct of activities on licensed premises, particularly with regard to allowing persons to enter/remain on those premises

WHETHER BREACH OF DUTY EXISTS  

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There was a risk (that Adeels Palace knew/ought to knew of) that there would be violent/disorderly conduct in the restaurant. This risk was not insignificant Should a reasonable person in Adeels Palace’s steps have taken the precautions that the plaintiffs allege should have been taken? (provision of security guards, enough to monitor both floors of the pub). o Probability that harm would occur: o The likely seriousness of the harm: o The burden of taking precautions to avoid the risk: o The social utility of the activity that created the risk: Evidence of these questions included evidence of opinions of persons described as ‘security consultants’ o Accepted that there had been a need for access control, having the purpose of discouraging at least, if not preventing, the return of unruly patrons who had left o Was not specifically stated that supervising conduct should have been in the restaurant, however, first Judge and the Court of Appeal concluded that failure of Adeels Palace to provide personnel to act as crowd controllers was a breach of duty of care to patrons  This is only true if the probability of unruly patrons returning to premises to act violence against patrons, was such that a reasonable person in Adeels Palace’s position would have employed security control  There is always a risk of this happening, however, if it was not a foreseen risk that called for the presence of physical authority, then there would not be a breach in duty of care  Legal issue: at the Trial and Court of Appeal, there was no finding that a risk of that kind should have been foreseen. This was not discussed in the previous dealings of the matter. Not worthwhile to consider conclusion of whether a breach occurred (in the trial, it was found that there was a breach of duty of care due to lack of correct personal – however it is not known if this opinion was based on consideration of what had happened(looking backwards) instead of the probability of violence is access control was not provided (looking forwards) o At the very least, it was not discussed by the trial judge if a reasonable person in Adeels Palace’s position would have prospectively provided security guards o Hard to consider this breach question now, as the answer given in any case turns on the facts of that case as they are proved in evidence. – answering this question of breach of care would not establish any rule of

Torts A SP2 2018

Case Notes – Adeels Palace Pty Ltd v Moubarak 

whether security guards should be engaged by operators of premises (in future). We can, instead, consider the question of causation (whether negligent behavior from Adeels Palace caused violent behavior of patron)

CAUSATION   

In situations where the Civil Liability Acti/ equivalent statutes are engaged, it is the applicable statutory provisions that must be applied Section 5D(1) of the Act divides determination of negligence into 2 elements: factual causation & scope of liability Factual causation – that the negligence was a necessary condition of the occurrence of the harm– NOT SATISFIED o ‘But for’ the negligent act/omission, would the harm have occurred?  In the Court of Appeal, Giles JA stated that security personal at the door would have been able to turn away the gunman when they noticed he had blood on his face. They would have prevented gunman from re-entry & therefore prevent plaintiffs of getting shot  However, no basis to conclude that security could prevented gunman from entering, given that later events showed he was willing to use gun on people unconnected with his desire for revenge  Evidence shown at trial did not show that presence of security would have deterred gunman from entering (only if assumed that the gunman would act rationally). Nor did the evidence show that security presence would have prevented gunman’s re-entry (a determined person armed with a gun irrationally bent on revenge)  Modbury Triangle Case – conduct of criminals not necessarily dictated by reason/prudential considerations (_____)  Evidence given at trial by a security consultant asserted that security presence confronting the gunman ‘would have at least altered the chain of events and thereby likely altered the outcome’  Security consultant (called on behalf of Adeels Palace) emphasized that overriding principle which should govern security conduct is ‘safety for all parties’… ‘once a determined gunman is targeting a victim/s there (is) no guaranteed safe option’ o Recognising that changing of circumstances ‘might’ have made a difference does not prove factual causation – neither plaintiff proved factual causation by pointing to possibilities that might have occurred if circumstances had been different o The ‘but for’ causation was not established either – was not pointed out that it was more probable than not that, but for the absence of security guards, the shootings would not have taken place – the absence of security at Adeels Palace on the night was not a necessary condition of their being shot

Torts A SP2 2018

Case Notes – Adeels Palace Pty Ltd v Moubarak Distinguish Home Office v Dorset Yacht (evidence demonstrated that taking of reasonable care would probably have prevented the occurrence of injury to plaintiffs)  Distinguish Chappel v Hart (but for failure to warn, the event would not have happened – question whether additional factors, combined with satisfaction of but for test, were sufficient to establish causation) Scope of liability – that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused o Not needed to be answered, as the ‘but for’ element failed Section 5D(2) of the Act makes provision for “exceptional cases”, but does not specify what this means o In such a case, the Court is demanded “to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party”, which is to be done “in accordance with established principles” o What is the difference between ‘established principles’ and the ‘but for’ test?  Before the Civil Liability Act, the ‘but for’ test was not always a sufficient test of causation, but it is now a necessary test for causation o Even if the presence of security might have deterred/prevented gunman entering bar, and even if security might have been able to intervene in incident on dance floor in time to prevent injury to anyone, neither of these hypothetical situations is reason enough to conclude this case is an ‘exceptional case’  To impose responsibility would not accord with established principles  It may be said that (s 5D(2)) was enacted to deal with cases such as Fairchild v Glenhaven Funeral Services, and if so, the present and previous cases are very different - no analogy can be drawn).  Would be contrary to established principles to hold Adeels Palace responsible if not providing security was not a necessary condition of occurrence of harm, but instead might have deterred/prevented occurrence, or might have resulted in harm suffered by someone other than plaintiffs  As in Modbury, the event was deliberate criminal wrongdoing, & occurred despite society devoting its resources to deterring it through work of police forces/punishment of those caught  It should not be accepted that negligence which was not a necessary condition of the injury that resulted from a third person’s criminal wrongdoing was a cause of that injury Each plaintiff argued that Court of Appeal orders were to be supported by contending that s 74 of the Trade Practices Act was engaged o If so, plaintiffs could recover damages for breach of implied warranty only if he established that the breach of warranty was a cause of his loss o However, as mentioned earlier, a ‘but for’ causal connection between absence of security and injury to plaintiffs was not established Judgement: 

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Torts A SP2 2018

Case Notes – Adeels Palace Pty Ltd v Moubarak o appeal allowed (with costs) o Set aside Orders previously made in the Court of Appeal, and in lieu thereof order that:  The appeal to Court of Appeal be allowed with costs  The orders of District Court be set aside, and in lieu thereof, there is judgement for the defendant with costs

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Factual issues: What is the dispute? How did it arise? How was it resolved? Legal issues: what was the legal difficulty in the case, what was decided, how was that position supported by the judge’s reasoning, how were other cases dealt with? Critically analyse the case: was the reasoning convincing, was it morally appropriate? How has the decision been subsequently dealt with (this section not more than a paragraph or two, look at CaseBase, etc)...