In this issue:
Golf injury to the “fore” in Queensland case
Hindsight not “20/20” says appeal court
Shooting case ends in liability for licensee
Ambos not liable for treatment refusal
Widow of over-limit driver succeeds
Golf injury to the “fore” in Queensland case
Regular readers of this publication will recall that in August 2008, we discussed the so-called “golfers’ case” (Pollard v Trude) from the Supreme Court of Queensland. As noted at the time, an appeal was lodged against that decision and the Queensland Court of Appeal has now ruled on that appeal.
To recap briefly, Dr Pollard and Mr Trude were competing in a golf tournament in 2004. There were two other players in their group of four. Dr Pollard had played his shot at the 11th hole, and had seen it disappear into a grove of trees. He went off to find the ball. He located it fairly quickly but had to wait because a group ahead had to clear the green. At that point, he was about 80m ahead of, and to the left of, Mr Trude. Mr Trude hit his shot, but it skewed to the left and entered the grove of trees several metres above the ground. Dr Pollard heard a call of “Watch out, Errol” as he stood waiting to take his shot. He turned his head in the direction of the call. At that point, the ball glanced off one of the trees and struck him in the head near the right eye.
Dr Pollard sued, alleging that Mr Trude was negligent. At trial, Justice Chesterman found in favour of Mr Trude and dismissed Dr Pollard’s claim. Dr Pollard then appealed.
The appeal centred on key findings by the trial judge; notably that no warning was required from Mr Trude before he took the shot. In making that finding, the trial judge had reference to s.15 of the Civil Liability Act, which provided that no warning was required of an “obvious risk”. Dr Pollard contended that the trial judge had misstated the risk – which was characterised as the risk of being struck by the ball. It was argued that the risk should have been characterised as “that Mr Trude wouldtake his shot without warning him that he was about to do so, and would not call“Fore” if he mis-hit in Dr Pollard’s direction”.
Delivering the court’s unanimous decision, Justice Holmes noted there was an internal inconsistency in the argument (i.e. that Mr Trude should have warned that he was about to do something without warning); but more fundamentally, found that the risk in question was the “risk of harm”. The “harm” was that of injury by being struck by the ball. The question of whether that occurred with or without warning was irrelevant to the characterisation of the risk. Accordingly, the trial judge had correctly described the risk.
Dr Pollard also contended that the warning of “Watch out” was inadequate and that had Mr Trude called out the traditional “Fore”, the injury could have been prevented. This argument too was dismissed. Both terms conveyed a warning that the ball was in the general vicinity. While a shout of “fore” might be expected if the ball was travelling directly at Dr Pollard, the evidence was that it was several metres above him when it entered the grove of trees. Although a call of “fore” might have resulted in Dr Pollard trying to protect his face better than he did, Mr Trude could not have foreseen that the ball would strike the tree at the precise angle it did and ricochet toward Dr Pollard.
Arguments on causation were also dismissed; and in the result, the appeal was unsuccessful.
Pollard v Trude [2008] QCA 421
Hindsight not “20/20” says appeal court
While binge drinking and associated violence continue to attract headlines, the legal consequences of such violence have become a source of consternation for owners of licensed premises and their insurers. The position however has not moved to a state of “strict liability” for assaults, as a recent decision of the NSW Court of Appeal confirmed. The case also cautions against the dangers of using hindsight to reach a conclusion on responsibility.
Tarique Karimi was out with a group of friends at the Rooty Hill RSL Club on the night of Saturday 19 April 2003. During the evening, there was an incident involving Mr Karimi and another patron, Michael Smith. Mr Karimi had been the innocent victim of an earlier unprovoked assault by Smith inside the Club. As a consequence of that incident, both men (in accordance with Club policy) were evicted by security guards employed by Allied Security Group Ltd.
The departure of each was managed by Allied staff such that Mr Karimi and his companions left by the rear (western) entrance and Mr Smith and his girlfriend, Ms Cameron, left by the front (eastern) entrance. Mr Smith and Ms Cameron told the security guards that they intended going home. A security guard saw them drive out of the front car park. This information was conveyed to the security staff at the western entrance who then invited Mr Karimi and his companions to leave. However, Ms Cameron drove Mr Smith into the western car park. As Mr Karimi walked through the car park Mr Smith ran up to him and “king hit” him with sufficient force to knock him backwards to the ground. Mr Karimi was conveyed in an unconscious condition to hospital where he remained comatose for around two months. He suffered significant residual brain damage as a result.
He sued the Club and Allied in the Supreme Court of NSW and was successful. Both appealed against that decision.
Delivering the unanimous decision of the Court of Appeal, Justice Bell noted that licensees of licensed premises could be liable for criminal assaults by patrons on each other; based on their control over the premises and their knowledge (or means of knowledge) about patrons’ intoxication. However, mere intoxication was not enough to render a licensee liable. Additionally, it had to be proved that they had actual or constructive knowledge that a patron was aggressive when intoxicated.
The Club and Allied both challenged the key finding of the trial judge; namely that it was foreseeable that Mr Smith would return to the premises after being ejected to assault Mr Karimi.
The evidence given by three of Allied’s security guards at trial was that they had spoken with Mr Smith at the front entrance for about 10 minutes. During that time, he appeared to calm down and they thought it was “all over”. Additionally, they told Ms Cameron to take Mr Smith home and she had assured them she would do so. The security guards watched as Ms Cameron’s vehicle left the car park and then conveyed that to their colleagues at the western entrance who were with Mr Karimi. Only once they had received that confirmation did they allow him to leave.
Examining that evidence, Justice Bell expressed the view that the trial judge’s conclusion that the Club and Allied were negligent could not be sustained.
It was only by “reasoning backwards” from what had actually happened that the conclusion was reached.
Without the benefit of hindsight, the Club and Allied were in a position where Mr Smith appeared to have calmed down and to be going home. Mr Karimi was not asked to leave until the security staff confirmed that Mr Smith had left the premises; and when he left, he was with a group of other men. In those circumstances, it could not have been foreseeable by Club and Allied staff members that Mr Smith would enter the western car park to assault Mr Karimi.
Even though Mr Karimi had been the subject of an apparently unprovoked assault by Mr Smith, that in itself was not enough to call for greater measures than those which the Club and Allied took.
As a result, the appeal was allowed and judgment was entered for the defendants.
Rooty Hill RSL Club Ltd v Karimi [2009] NSWCA 2
Shooting case ends in liability for licensee
A superficially similar case to Karimi has however resulted in a very different outcome in the NSW Court of Appeal.
The appellant company ran a “restaurant/night club” known as Adeel’s Palace at Punchbowl. The establishment hosted a New Years Eve function at which the respondents, Mr Moubarak and Mr Bou Najeem attended. In the early hours of 1 January 2003, what was described as “trouble” broke out on the dance floor. The “trouble” involved Mr Moubarak and another patron, Mr Abbas and escalated into a fight between the two. After the fight was broken up, Mr Abbas left, but returned shortly after with a gun and shot Mr Moubarak and Mr Bou Najeem.
They sued Adeel’s Palace in negligence and both were successful in the District Court. Adeel’s Palace appealed against the findings in both cases.
On the appeal, Adeel’s Palace argued firstly, that they owed no duty of care to the respondents; secondly, that if they owed a duty they had not breached it; and finally, if they had breached a duty of care, that breach had not caused the respondents’ injuries.
Delivering the Court’s judgment, Justice Giles noted that licensees owed a duty of care in relation to violent behaviour, whether from intoxication of a patron or for other cause.While intoxication might be a common cause, it was not essential to the existence of a duty.The duty of care could be stated in terms of a patron or patrons whose presence was or should have been known “to constitute a source of danger to other patrons”.
Accordingly, the duty of care owed by Adeel’s Palace extended to taking reasonable care to guard against injury from intoxicated, unruly or violent – including criminal – behaviour of other patrons.That duty extended to taking reasonable care to guard against injury to the respondents by the unlawful conduct of another patron.
In relation to breach of duty, Justice Giles disposed of the issue quickly, noting the trial judge’s acceptance of evidence that there were no security staff present during the relevant time. There was a manager present, but it was found that his mere presence was inadequate. Accordingly, in light of the risks posed by the function and noting several previous incidents of a similar nature, no error had been shown in the trial judge’s reasoning.
On the causation point, the trial judge had accepted that the lack of security personnel meant that Mr Abbas was able to return to the premises, freely re-enter the premises and shoot the respondents; and that the breach of duty had materially contributed to their injuries. Justice Giles noted that, had they been in place, security staff would have been aware of the fight on the dance floor.They would have been able to recognise Mr Abbas as he had blood on his face from the fight and this would have caused the security staff to deny him entry, or at least to search him as a condition of being permitted to enter.On the balance of probabilities then, security staff at the street entrance would have deterred or prevented Mr Abbas’ re-entry.The trial judge had therefore been correct to find causation established.
In the end result, the appeals were dismissed.
Adeels Palace Pty Ltd v Moubarak;Adeels Palace Pty Ltd v Bou Najem [2009] NSWCA 29
For yet another decision on similar circumstances, see Portelli v Tabriska Pty Ltd [2009] NSWCA 17.
Ambos not liable for treatment refusal
The NSW Court of Appeal has found that ambulance officers were not negligent when they agreed not to take an injured man to hospital following his refusal to allow them to do so.
In July 2001, Michael Neal suffered a serious blow to the head whilst walking alone in Newcastle at night. Police officers found him and called an ambulance.The injury appeared to be the result of an assault. He rejected assistance from the ambulance officers.Since he was clearly drunk, the police took him into custody under the Intoxicated Persons Act.The following morning, his condition began to deteriorate and he was taken to hospital.A CT scan revealed an extradural haematoma with a fracture to the skull. The plaintiff was transferred to another hospital for surgery to drain the extradural haematoma.
Mr Neal suffered various ongoing disabilities following the assault; some of which were allegedly caused from the failure to take him to hospital when the police found him in the street.
He brought proceedings in the District Court for negligence against the State of NSW (as responsible for alleged negligence by the police) and the Ambulance Service of New South Wales. He was only successful against the Ambulance Service.He appealed against the trial judge’s findings with respect to the State’s liability and damages. The Ambulance Service cross-appealed against the finding against it.
At the appeal, the Court of Appeal identified the relevant liability issues as:
- whether the ambulance officers had breached their duty of care by failing to advise the police that Mr Neal needed to be taken to hospital; and
- whether the police officers had breached their duty of care by failing to take Mr Neal to hospital, either immediately he arrived at the police station or later.
Delivering the court’s unanimous decision, Justice Basten found that ambulance officers had a duty to take reasonable care in treating a person to whose assistance they have been called, whatever the cause of the need for treatment.
In this case, the ambulance officers should have passed on information about Mr Neal’s injury to the police because they were unable to provide medical assistance and they knew he was about to be taken into police custody.
While that information should have been passed on, the crucial question was whether Mr Neal would have agreed to go to the hospital, or, if taken unwillingly, he would have submitted to the medical assessment and treatment. Based on the available evidence, the only available inference was that he would not willingly have gone to hospital and submitted to medical assessment, whether taken by the police (which was itself improbable) or in an ambulance.
Therefore, Mr Neal had failed to establish affirmatively that he would have accepted medical assessment and treatment. He did not show that any breach of duty on the part of the ambulance officers caused the delay in treatment. As a result, negligence was not established against the ambulance officers.
In relation to the police, Justice Basten noted that police protocols may be relevant to establishing the nature and extent of their duty of care to detainees. While the police had a general law obligation to provide medical treatment as required by Mr Neal, there was no breach of that duty in the circumstances of the case.
The custody manager at Newcastle Police Station, where he was detained, did not envisage taking a detainee to hospital in a police vehicle.If an ambulance had been called immediately after Mr Neal’s arrival at the police station, the probability was that he would have refused to go to hospital and the ambulance officers would not have been able to take him.
It therefore followed that Mr Neal’s appeal against the State of NSW was dismissed; but the Ambulance Service’s cross-appeal was upheld. The end result was that Mr Neal’s claim failed in its entirety.
Neal v Ambulance Service of NSW [2008] NSWCA 346
Widow of over-limit driver succeeds
Publicans are also in the firing line in Tasmania, where a rather different set of circumstances has resulted in a finding of liability.
On the evening of 24 January 2002, Shane Scott was killed when he lost control of his motorcycle and collided with a guard rail. At the time of the accident, he had a blood alcohol concentration of 0.253 (the legal limit for driving being 0.05). Prior to the incident, Mr Scott had been drinking heavily at the Tandara Motor Inn in Triabunna. Mr Kirkpatrick, the licensee (who was one of the defendants in the action) had served him six to eight drinks. Mr Scott had then requested that Mr Kirkpatrick lock the motorcycle in the storeroom, which he did. After further drinking, Mr Scott requested return of motorcycle after he had been refused further alcohol. He was clearly intoxicated at the time. Mr Kirkpatrick offered to ring his wife to collect him; but Mr Scott “belligerently” refused all offers of alternate transport home. Mr Kirkpatrick then returned the bike to him.
Mr Scott’s widow sued Mr Kirkpatrick and the proprietor of the hotel, CAL No. 14 Pty Ltd. At trial, she was unsuccessful and judgment was entered for the defendants. She appealed to the Full Court.
By a 2-1 majority, the Full Court allowed the appeal and entered judgment in favour of Mrs Scott.
The majority – Justices Evans and Tennant – found that the relationship between Mr Scott and Mr Kirkpatrick (and through him, the company) went beyond merely being hotelier and customer. This included Mr Kirkpatrick’s involvement in calling Mr Scott’s wife to come and collect him, a call plainly made so that Mr Scott would not ride the motorcycle home while drunk.He had also put the motorcycle in a locked storeroom and retained the key.By doing so, Mr Kirkpatrick took on a role that went “way beyond” the normal relationship between hotelier and patron.
The key issues were that Mr Kirkpatrick was personally serving Mr Scott alcohol. He must have known he was intoxicated because he had refused him service. In addition, he had effective control over the motorcycle. In those circumstances, he must have foreseen that “if he failed to do something to deflect Mr Scott from riding the motor cycle from the hotel that night, there was a risk that Mr Scott would suffer injury and that risk was not far-fetched or fanciful”.
Accordingly, the majority found both Mr Kirkpatrick and the proprietor owed Mr Scott a duty of care that had been breached.
In the minority, Chief Justice Crawford would have found that neither of the defendants owed any relevant duty to Mr Scott.
Scott v CAL No. 14 Pty Ltd (No. 2) [2009] TASSC 2
The material contained in this publication is no more than general comment. Readers should not act on the basis of the material without taking professional advice relating to their particular circumstances.
