Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem - [2009] HCATrans 234

[2009] HCATrans 234

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S191 of 2009

B e t w e e n -
ADEELS PALACE PTY LTD
Appellant
and
ANTHONY MOUBARAK
Respondent

Office of the Registry
Sydney No S192 of 2009

B e t w e e n -
ADEELS PALACE PTY LTD
Appellant
and
ANTOIN FAYEZ BOU NAJEM
Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 23 SEPTEMBER 2009, AT 10.20 AM

(Continued from 22/9/09)

__________________

FRENCH CJ: Before we hear from Mr Sexton, Mr Toomey, I see you have filed your amended notice of contention.

MR TOOMEY: We have, your Honour. Could I just say something as to why we submit that the amendment ought be allowed. The matter was raised in our submissions in this Court. It was raised in the trial court, as is apparent from the judgment of his Honour Judge Sorby at 604, 605 of the appeal books. It is conceded, as I understand, by my learned friend, after a discussion we had this morning, that it was a live issue in the case. We say what it amounts to is an unfortunate omission on our part to add it to the notice of contention.

FRENCH CJ: Can I just ask you, in the light of our discussion yesterday about the nature of the case in relation to risk that you were advancing in argument, why it is that in the notice of contention you are asserting that there was a material increase in an existing risk of injury? I thought you had accepted that the case really was based on the proposition that by the failure to provide security staff an existing risk of injury was not reduced.

MR TOOMEY: Your Honour, I think I did so, with respect. I am not of course doubting what your Honour says, but I do not remember the exact terms, but on reflection, whether mature or immature, we arrived at the conclusion that it was more properly put as the existence of a risk even with the presence of security guards. That is always the risk of violence from other patrons which risk was increased by the failure of the appellant. It may be, with respect, your Honour, that you call a chessboard white or you call it black.

FRENCH CJ: I am not sure about that. Anyway, that is the basis upon which you are proceeding. I think perhaps Mr Sexton should know precisely how it is that you are putting that case.

MR TOOMEY: Yes, your Honour.

FRENCH CJ: Absent security staff, there is a risk of injury, because somebody might do something bad – this is the proposition I was putting to you yesterday – and cause harm to another patron.

MR TOOMEY: Your Honour, I must accept that.

FRENCH CJ: The point of putting security staff on is to reduce the risk…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCATrans 234
Case: [2009] HCATrans 234
Decision Date

CaseChat Overview and Summary

Adeels Palace Pty Ltd was the defendant in proceedings brought by the plaintiffs, Mr Moubarak and Mr Bou Najem, in the Supreme Court of New South Wales. The dispute arose from injuries sustained by the plaintiffs when a brawl broke out at a wedding reception held at the defendant's restaurant, Adeels Palace. The plaintiffs alleged that the defendant had breached its duty of care to provide a safe environment for its patrons by failing to take reasonable steps to prevent the fight and to control it once it began. The case ultimately reached the High Court of Australia.

The High Court was required to determine whether the defendant owed a duty of care to the plaintiffs to prevent injury from the violent conduct of other patrons, and if so, whether that duty had been breached. A further issue was whether, assuming a breach of duty, the plaintiffs' injuries were caused by the defendant's negligence, or whether the intervening criminal conduct of the third parties constituted a novus actus interveniens, breaking the chain of causation.

The High Court held that the defendant did owe a duty of care to take reasonable steps to protect its patrons from foreseeable harm, including harm caused by the violent conduct of other patrons. This duty extended to taking reasonable steps to prevent such conduct and to control it if it occurred. However, the Court found that the brawl was not reasonably foreseeable by the defendant, and therefore, there was no breach of duty. Even if there had been a breach, the Court considered that the criminal acts of the third parties were the direct cause of the plaintiffs' injuries, and that these acts were not so unforeseeable as to be incapable of breaking the chain of causation. The principles of negligence, including the elements of duty of care, breach of duty, and causation, were central to the Court's reasoning.

The High Court allowed the appeal, finding that the defendant was not liable for the plaintiffs' injuries.

Orders