Adeels Palace Pty Ltd v Moubarak

High Court of Australia · 2009

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420

A man hit in a New Year's Eve brawl fetched a gun and shot two men. The venue had no security guards. Why did the plaintiffs still lose?

What happened?

Adeels Palace Pty Ltd ran a licensed reception and restaurant business in Punchbowl, New South Wales. On New Year's Eve 2002 the restaurant was full, and admission was collected at the door ([1]-[2]). At about 2.30 am a dispute between women on the dance floor grew into a fight in which onlookers joined and chairs, plates and bottles were thrown ([3]). One man involved was hit in the face and bleeding; he left, came back with a gun, shot Mr Bou Najem in the leg in the kitchen as he tried to hide, and then shot Mr Moubarak, the man who had struck him, in the stomach ([4]-[5]). No licensed security personnel were on the premises. Each injured man sued for negligence in not providing any or sufficient security, and each succeeded in the District Court and in the Court of Appeal ([6]-[7]).

What did the Court decide?

The five Justices gave a single joint judgment. Both appeals were allowed with costs, the Court of Appeal's orders and the District Court's judgments were set aside, and judgment was entered for Adeels Palace in each matter ([59]). The Court held that Adeels Palace owed its patrons a duty of reasonable care ([26]), declined to decide whether it had breached that duty ([40]), and decided the appeals on causation: the plaintiffs had not proved that the absence of security was a cause of their injuries ([40], [53]).

Proposition

What is the principle?

To prove that negligence caused harm under s 5D of the Civil Liability Act 2002 (NSW), the plaintiff must first prove factual causation, which "is determined by the 'but for' test: but for the negligent act or omission, would the harm have occurred?" ([45]). Here the Court held that was not established: "[i]t was not shown to be more probable than not that, but for the absence of security personnel (whether at the door or even on the floor of the restaurant), the shootings would not have taken place" ([53]). Three points follow. First, "neither plaintiff proved factual causation by pointing to possibilities that might have eventuated if circumstances had been different" ([50]). Second, that the injury was "the very kind of thing" the duty guarded against may bear on scope of liability, but "must not be permitted to obscure the need to prove factual causation" ([51]). Third, s 5D(2) did not rescue the plaintiffs: whether it is engaged "must depend ... upon whether and to what extent 'established principles' countenance departure from the 'but for' test" ([54]), and the Court held that holding the operator responsible here "would not accord with established principles" ([56]), the injuries having been caused by deliberate criminal wrongdoing ([57]). The Court did not decide how s 5D(2) would apply to a case of the Fairchild kind ([57]).

Sections 5B and 5C of the Civil Liability Act 2002 (NSW) sit under the heading "Duty of care", but the Court said that heading "is apt to mislead" ([13]) and that both provisions "are evidently directed to questions of breach of duty" ([13]). Whether a reasonable person would have taken a precaution is assessed prospectively, "not with the wisdom of hindsight": "they were to be assessed before the function began, not by reference to what occurred that night" ([31]), and "whether a reasonable person would have taken precautions against a risk is to be determined prospectively" ([40]). The Court accepted "for the purposes of argument" that the risk was one the operator knew or ought to have known of and that it "was not insignificant" ([28]); it did not find either. The Court expressly declined to decide whether breach was proved: "It is not useful in these circumstances for this Court to form a conclusion about whether breach was proved in these cases" ([40]). So the case does not decide whether licensed premises must employ security personnel, and says that deciding breach would not establish "any rule about when or whether security personnel should be engaged by the operators of licensed premises" ([40]).

An operator of licensed premises owed its patrons a duty to take reasonable care to prevent injury to patrons from the violent, quarrelsome or disorderly conduct of other persons ([26]). The Court did not treat Modbury Triangle Shopping Centre Pty Ltd v Anzil as dictating the contrary: Modbury concerned a duty said to rest only on an occupier's control of the physical state of land, whereas here the complaint was a failure to control access to, or continued presence on, the premises ([23], [25]). The Court gave three reasons for finding a duty in these cases: the complaint concerned control of access to or presence on the premises, the premises were licensed and so ones where care must be taken against harm from misuse and abuse of liquor, and the duty alleged was to take reasonable care to prevent events the licensee was bound by the Liquor Act 1982 (NSW) to prevent ([25]). The duty "is not absolute; it is a duty to take reasonable care" ([26]).

Why does this case matter?

The Court's reasons treat the structure of the New South Wales causation provision at some length, and they show the order in which a statutory negligence problem is meant to be worked: the Court insisted that attention go first to the Civil Liability Act, and only then to the Liquor Act, because otherwise "there is serious risk that the inquiries about duty, breach and causation will miscarry" ([11]).

The result surprises students. The plaintiffs were shot on premises where a duty of care was owed, in a setting the duty was aimed at, and still lost. That gap between a recognised duty and a lost claim is what the case is cited for in practice, and it is why the order in which the statutory questions are asked matters so much.

Exam and application relevance

Separate the questions and state which the Court decided. Duty: it found one on the particular facts, relying on the Liquor Act and the nature of the complaint, not on a general rule about third-party criminals. Breach: it did not decide, so do not cite the case as authority that a venue must, or need not, hire security; say that the question turns on the evidence and is assessed prospectively. Causation: it is the authority to cite when a plaintiff's case on an omission rests on what a precaution might have achieved.

In a causation answer, work in the statute's order: factual causation by the but-for test, then, only if that fails, whether s 5D(2) is engaged, and then scope of liability. Say what the precaution would probably have done and what evidence shows it, and do not treat the plaintiff's injury being the kind the duty addressed as proving that. Identify the jurisdiction and the Act: the case concerns s 5D of the New South Wales Act, and the text and numbering of equivalent provisions in other jurisdictions differ.

The case does not decide the content of s 5B(1)(b) or how s 5B relates to the Shirt calculus. Do not attribute a view on either to it.

Check your understanding

1. The Court describes ss 5B and 5C as breach provisions. What reason does it give for saying the heading is misleading, and what did it decide about breach in this case? 2. A plaintiff shot by a gunman argues that a security guard at the door "might" have turned the gunman away. Using the Court's reasoning, explain why that does not establish factual causation, and say whether s 5D(2) would help. 3. The defendant's duty was to take reasonable care to prevent violent assault, and each plaintiff was the victim of one. Which element of s 5D does that observation bear on, and which does it not answer?