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Adeels Palace case analysis...

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Torts A -Individual case studyAdeels Palace Pty V Moubarak [2009] 239 CLR 420 Party A: Adeels Palace Party B Moubarak

In the high court of Australia - French CJ, Gummow J, Hayne J, Heydon J and Crennan J [10th November 2009] - The Adeels Palace held a party in their nightclub where a fight broke out and resulted in two men being shot and severely injured. After having their case heard in the District Court and the Court of Appeal and losing both cases, Adeels Palace appealed to the High Court. As a result the High Court could not forge a link between the case of negligence and the injuries sustained by the respondent.

Facts of the case The respondent, Mr Moubarak was celebrating on the 1st of January in the early morning inside of Adeels Palace which was hosting a party celebrating the new year of 2003. A fight had broke out among the venue, specifically in the case where one man was hit in the face drawing blood. In response to this said man left the nightclub only to return with a gun. The first man he shot (another respondent to the case) had no relation to the fight but was shot regardless. The second was the man who first punched him, Mr Moubarak. The two victims both desired compensation from Adeels Palace in regards to their injury. For the negligence in not providing proper security at the venue and a breach of the Trades Practices Act 19741. After losing in two courts Adeels Palace appealed to the higher courts claiming that they owed no duty of protection from third parties.2

The legal reasoning Adeels Palace had brought forth the claim that they owed no duty of protection towards third parties in preventing criminal actions. They established this by recalling the Modbury Triangle Shopping Centre Pty Ltd v Anzil3 case regarding a breach of duty when Anzil, a video renter working in the shopping centre was returning home when he was attacked by three assailants. Proceeding this he sued the shopping centre for negligence in not having any street lamps illuminated and not ensuring their tenants safety.4 The judges of that case however allowed the shopping centre’s appeal due to the fact that they could not prevent actions from third parties and their negligence in keeping the area lit could not be established as the Anzil had chosen to park there regardless. WIth this in mind the combined judges were also left to think of the legal

1 An act that focuses on promoting competition and fair trading while protecting consumers. 2 This summary was inspired by the Adeels Palace Pty Ltd v Moubarak [2009] 239 CLR 420 commonwealth law reports. 3 [2000] 205 CLR 254 4 Summary inspired by Modbury Shopping Centre v Anzil [2000] 205 CLR 254 commonwealth law report || page 255

rules behind this case, namely the Civil Liability Act5 and the Liquor Act 19826. Focusing specifically on the Liquor Act, it was a determined fact that at the venue that no alcohol was served to any of the guests that night. This could be a way of how Adeels Palace was trying to prevent any violence as those who are drunk tend to be more harmful to others. The main issue within this case is whether the lack of appropriate security was the cause of the injuries sustained by Mr Moubarak. This causation was put to the test by the Civil Liability Act 20027 which is “...a determination that negligence caused particular harm compris[ing] of elements…” In this case, the element featured would be factual causation8. While it was true that9 “Security personnel may have been able to deter or prevent re-entry by the drunk, or the obstreperous would-be patron willing to throw a punch,” there is also the possibility that there would have still been a fight and someone else who have been shot as a result. This case was not unique or eligible to be an exception in regards to sub section 5D (2) of the Civil Liability Act.10 This section was used previously in another case to exemplify the decisions of the judges in Fairchild v Glenhaven Funeral Services Ltd11 where three separate plaintiffs were exposed to severe chemicals that caused them to have lung cancer as a result of employment with different employers. The main problem was from which point in time in their employment these plaintiffs contracted the disease. However, this cases’ conclusion is not necessarily relevant as these two cases are dissimilar. In this case the appeal was allowed.

Critical analysis The decisions that the court had come to was at first confusing to read - the appeal was allowed to Adeels Palace that they held no responsibility in the injuries sustained by Mr Moubarak, however, how was that possible? He was injured in their domain, and he was not protected at the venue. Furthermore, this fighting would not have occurred if there was security provided at the venue. However, all reasons for this decision becomes much clearer after a second read through, in more detail and with investigating other cases it becomes apparent that there is truth when explaining that there is no evidence in linking the lack of security and the incident that had occured. There is no telling what security would have done to prevent the actions of a man who in “...later events showed he was ready and willing to use the weapon on persons unconnected with his evident desire for revenge.12”

5 Section 5b (2) 6 Liquor Act 1982 no. 147 (NSW) 7 Section 5D (1) 8 In the law of Torts its a lawyers duty to build a link between the injuries of the victim and the actions of the defendant/accused. This normally is used as a “but for…” test. But for the defendant’s actions, would the victim still be injured? The answer to this question will affect the judgement of the case. 9 Adeels Palace Pty Ltd v Moubarak [2009] 239 CLR 420 Commonwealth law reports || page 441, section 47 10 In cases of factual causation in damages the court will allow some exceptions or special cases 11 [2003] 1 AC 32 12 Adeels Palace Pty Ltd v Moubarak [2009] 239 CLR 420 Commonwealth law reports || page 441, section 47

In dealing with previous cases such as Chappel v Hart13 where Chappel appealed to the courts claiming he owed Hart no duty of care as her surgeon in failing to inform her the risks of having surgery - While the two cases have different settings - the main issue involved was if the appellant of each case owed a duty towards the respondent in whether they were negligent in their duties. “A plaintiff must satisfy a court that the defendant’s negligence was the cause of their injuries in order to discharge the onus of proof bourne by the plaintiff as required by S 5D of the Civil Liability Act.”14 This statement is what sealed both cases in a similar verdict. The appeal was granted to Adeels’ Palace and the decisions of the Court Of Appeal and the District Court were set aside.

13 [1998] 195 CLR 232 14 Olivia Dinkha, 2009, essay...