Warning: This article contains details about assault which may be upsetting for some readers. Reader discretion is advised.
The court rejected a claim for damages for stabbing injuries sustained during a brawl at an event a licensed premises on the basis that the security provided was reasonable, and that the harm suffered was the result of the materialisation of an inherent risk.
In issue
- This case examined whether a venue occupier, and a property owner, owed a duty of care to protect a patron injured in a violent altercation. The plaintiff, stabbed during a brawl, argued that inadequate security measures were the cause of the injuries sustained by him. The claim against the patron who stabbed the plaintiff was dismissed by consent prior to trial. The only claims that came to be pursued at trial were those made by the plaintiff against the second and third defendants.
The background
On December 6, 2019, the plaintiff attended a ticketed concert at La Mirage Reception and Convention Centre in Somerton, Victoria with two friends, Elley and Kakoz. The venue was operated by Jo-Yo Nominees Pty Ltd (the second defendant), which was also the holder of the liquor license. The property was owned by Genesis International (Aust) Pty Ltd (the third defendant).
A corkage fee dispute between Elley, Kakoz, and the venue manager, Sami, escalated into a physical altercation. Elley and Kakoz struck Jamal, the first defendant, and were subsequently ejected by security.
At this time, security staffing had been reduced from 16 to only 3 guards.
The plaintiff and his friends initially drove away but Elley and Kakoz insisted on returning. They forced their way back into the venue, which led to a violent brawl inside the foyer. The plaintiff followed them inside, where he was stabbed twice by Jamal, who had armed himself with a large kitchen knife. The plaintiff suffered serious injuries to his abdomen and wrist and was later hospitalised.
In the proceedings, the plaintiff claimed that the second defendant and the third defendant failed to implement adequate security protocols, particularly by not preventing evicted patrons from re-entering and by not ensuring a sufficient security presence at the time of the incident. He alleged that had proper security measures been in place, the brawl—and his injuries—could have been avoided.
The decision at trial
The trial primarily focused on whether the second and third defendants breached their duty of care. The plaintiff’s claims against the third defendant, as the property owner, were dismissed, as the court found that it did not exercise operational control over the premises, nor was it responsible for event security.
As for the second defendant, the venue occupier, the court acknowledged that it had a duty to take reasonable steps to protect patrons from foreseeable harm. However, the court ultimately ruled that:
- The security measures in place were not inherently unreasonable.
- The venue was not required to anticipate the exact sequence of events that led to the stabbing.
- The plaintiff’s own conduct—including returning to the venue after leaving, entering a dangerous situation, and engaging in physical altercations—was a significant contributing factor to his injuries.
Furthermore, the court found that there was no clear causal link between any alleged security failures and the harm suffered by the plaintiff. Although security could have been better managed, the court was not convinced that additional security personnel or a different security protocol would have necessarily prevented the incident.
The court noted in relation to the contributory negligence argument that '... he (the plaintiff) plainly put himself in harm’s way and at very grave risk of exactly what subsequently ensued. In my view, there is much to be said for the proposition that the plaintiff recklessly courted the risk of very serious injury and, in a practical sense, brought his subsequent injuries upon himself'. In addition, the court found that the plaintiff entered the foyer as a trespasser. That action amounted to the plaintiff engaging in ‘illegal activity’. In the circumstances, it was undesirable to determine the defence of contributory negligence where the court did not find any causal breach of duty owed by either defendant.
The plaintiff’s claims against the second and third defendants failed, and the proceeding was dismissed.
Implications for you
This case reinforces the limitations of occupiers' liability in venues such as nightclubs, bars, and event spaces. While operators must take reasonable steps to ensure patron safety, they are not insurers against all possible harm. Courts will assess whether security measures were reasonable based on foreseeability rather than with the benefit of hindsight.
This case also demonstrates how contributory negligence can significantly reduce or eliminate liability. The plaintiff was aware of the risks associated with returning to a volatile situation but chose to enter the premises and engage in the altercation.
