The plaintiff was assaulted by an intoxicated patron and brought a claim in negligence against the venue operator and security company, alleging they were negligent in failing to evict the intoxicated person from the restaurant and bar.
The Court found in favour of the plaintiff, discounting damages by 20% on the basis that the plaintiff provoked the attack.
In issue
- In this article we consider the duty of care owed by venue operators and security guards to patrons and whether it is negligent to fail to evict intoxicated patrons. We also consider how the Courts assess past and future economic loss when a plaintiff’s income is from social media influencing and OnlyFans.
The background
The plaintiff, Clinton Chadwick, sustained various injuries when he was assaulted by a severely intoxicated person at the Bucket List Bondi restaurant and bar in December 2017. The Bucket List Bondi was owned by Bondi Beach Food Pty Ltd (the first defendant), and security services were provided at the venue by the Crossguard Group Pty Ltd (the second defendant).
The plaintiff alleged that the first defendant and the second defendant breached their duty of care by failing to control the intoxicated patron or evict him from the venue. The defendants filed cross claims against each other.
The defendants argued the plaintiff was contributorily negligent on the basis that he responded to the intoxicated person’s provocative remarks by initiating the physical contact. The severely intoxicated person pled guilty to the assault, however, was not a defendant to the proceedings.
The decision at trial
The Court found in favour of the plaintiff, holding that the defendants breached their duty of care, with a 20% reduction for contributory negligence. The reduction for contributory negligence was said to arise from the plaintiff’s failure to ignore the taunts directed at him from the intoxicated patron and his group of friends (however the Court placed far greater weight on the defendants’ failure to evict or control the group).
The Court determined the common law duty of care owed to a patron in a public bar extends beyond the duty owed by an occupier to a lawful entrant to include the duty to control ‘violent, quarrelsome or disorderly conduct on licensed premises’.
The Court found there was no doubt the defendants were aware that the patron was extremely intoxicated and that both failed to take steps to monitor, assess or take action to prevent the patron’s misbehaviour from escalating. The level of security staff was inadequate and no guards were in a position to intervene when required.
The Court ordered each defendant to pay 50% of the damages and costs payable to the plaintiff.
In relation to quantum, the Court considered the impact of the incident on the plaintiff’s employment. At the time of the incident, the plaintiff operated a fitness activewear business and OnlyFans account, however the Court awarded past economic loss based on the plaintiff’s previous employment, noting that the economic power of influencers and social media accounts was ‘not sustainable’. While the Court did not consider the plaintiff dishonest, it found him to be 'somewhat deluded by his own image' and unreliable.
The plaintiff was awarded $200,706.40 in damages plus costs.
Implications for you
This decision is a good example of how the duty of care owed to a patron in a public bar extends to taking reasonable steps to control the sale of liquor and minimise harm, including from other patrons, where the venue is licensed to serve alcohol. It also exemplifies how Courts may treat claims for economic loss when a plaintiff’s primary income is from social media influencing.
Updated 17 November 2023: On 9 November 2023, the NSW Court of Appeal allowed an appeal in respect of factual findings supporting the breach of duty for failure to evict an intoxicated person, but upheld the finding of breach of duty for failure to have at least 2 security guards on duty given the venue’s history of violent and intoxicated patrons. It increased the amount of contributory negligence from 20% to 50%, and otherwise affirmed the lower court decision.
