Livermore v Crombie

[2006] QCA 169

SUPREME COURT OF QUEENSLAND

CITATION:

Livermore v Crombie & Anor [2006] QCA 169

PARTIES:

KENNETH JAMES LIVERMORE
(plaintiff/appellant/cross-respondent)
v
JEANETTE CROMBIE
(first defendant/first respondent/first cross-appellant)
NAMATJIRA PTY LTD ACN 010 549 685
(second defendant/second respondent/second cross-appellant)

FILE NO/S:

Appeal No 70 of 2006
SC No 68 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Mackay

DELIVERED ON:

26 May 2006

DELIVERED AT:

Brisbane

HEARING DATE:

15 May 2006

JUDGES:

McMurdo P, Keane JA and Helman J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal dismissed1.   

Appellant to pay the respondents' costs of and incidental to the appeal to be assessed 2.   

Leave granted to make submissions as to Order 2 within seven days in accordance with the Practice Directions

3.   

CATCHWORDS:

TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - GENERALLY - where appellant was assaulted by two other patrons of a hotel - where appellant sued the respondents (the manager of the hotel and the licensee) for damages in negligence or breach of statutory duty in failing to have the two assailants removed from the hotel prior to the assault and in serving them alcohol prior to the assault - where learned trial judge dismissed appellant's claim and held that the conduct of the two assailants prior to the assault had not been such as to warrant their removal from the hotel by the respondents - where appellant argued before this Court that the learned trial judge should have held that reasonable care for the hotel's patrons required the removal of the assailants, or the refusal of further service of alcohol, prior to the assault - whether the findings of fact on which the trial judge's decision was based, or the conclusions drawn from those facts, should be set aside

Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91; (1988) 91 ALR 149, applied

COUNSEL:

K C Fleming QC, with R F King-Scott, for the appellant
R B Dickson for the respondents

SOLICITORS:

McKays Solicitors for the appellant
Barry & Nilsson for the respondents

1. McMURDO P:  I agree that the appeal should be dismissed with costs to be assessed for the reasons given by Keane JA.

1. KEANE JA:  On 21 May 1999, the appellant, while drinking at the Eimeo Hotel, was assaulted by two other patrons of the hotel ("the Michell brothers").  As a result, he suffered serious personal injuries.  The appellant sued the respondents, who are the manager of the hotel and the licensee respectively, for damages for negligence or breach of statutory duty in relation to their management of the hotel in failing to have the Michell brothers removed from the hotel prior to the assault, and in serving them liquor in the time leading up to the assault.

1. The learned trial judge dismissed the appellant's claim, holding that the conduct of the appellant's assailants prior to their assaults upon him had not been such as to warrant their removal from the hotel by the respondents in the interests of the safety of other patrons such as the appellant.

1. The respondents have cross-appealed in relation to the trial judge's assessment of damages.

The issues on appeal

1. The appellant now argues, on appeal to this Court, that the learned primary judge erred in failing to conclude that the respondents were negligent in failing to take steps to control the Michell brothers so as to prevent their assaulting him.

1. The appellant's notice of appeal contains numerous grounds on which the decision of the trial judge is challenged.  In argument, however, the appellant did not press all of these grounds.  Indeed, the only contention supported by argument on the appellant's behalf was that the trial judge should have held that reasonable care for the hotel's patrons required the removal of the Michell brothers from the premises, or the refusal of further alcohol, before the assault on the appellant occurred.  The appeal involves issues of fact only. 

1. It must be emphasised here that there is no suggestion that the respondents were obliged to ensure the safety of the appellant while he was on the hotel premises.  Neither do the respondents contend that they owed no duty of care for the safety of the appellant.  It is clear that an operator of licensed premises must exercise reasonable care for the safety of its customers. 

1. As to whether that duty has been breached in any particular case, the relevant legal principle was stated by the Full Court of the Federal Court in Chordas v Bryant (Wellington) Pty Ltd:[1]

"… [I]n the case of an hotel, which provides a facility pursuant to a licence authorising the provision of liquor and pursuant to Acts and regulations which require or imply that the facility be open to the public, it is necessary to keep in mind that the licensee may have no control over his patrons save the power to eject them for good cause.  As we have said, the manager of an hotel, like the manager of other facilities, must take reasonable care for his patrons and, if cause is shown which requires that a patron be closely supervised or ejected or that another patron be warned, the manager should take whatever may be the appropriate step in the interests of the safety of his patrons.  However, what is the appropriate course in a particular case obviously depends upon the circumstances of the case."

[1](1988) 20 FCR 91 at 99; (1988) 91 ALR 149 at 156.

1. With these observations in mind, I turn to a consideration of the facts of the case as found by the primary judge.  It will then be possible to address the appellant's challenge to those findings.

The findings of the trial judge

1. At about 9.00 pm in the evening of 21 May 1999, the appellant was sitting on a stool at the public bar.[2]  He felt a tap on his shoulder and looked up.  He saw a man he did not know.  That man was Brian Michell.  The appellant said that Brian Michell motioned to the appellant that he wished to speak to him.[3]  The appellant followed Michell into a hallway that led from the public bar to the toilets.  The appellant had followed Michell to a point near the entrance to the toilets when Brian Michell, without warning, punched him in the jaw.[4] 

   [2][2005] QSC 367 at [3].

   [3][2005] QSC 367 at [4].

   [4][2005] QSC 367 at [5], [21].

1. The appellant was stunned and thrown backwards by the force of the punch, but he did not fall over.  Patrons and staff of the hotel intervened.[5]  Brian Michell left the hotel building, and the appellant returned to his seat at the bar.  He could feel broken teeth and a gap in his jaw where he had been struck.[6]

   [5][2005] QSC 367 at [6].

   [6][2005] QSC 367 at [7].

1. After sitting for a short time at the bar and reflecting upon the assault, the appellant decided to find out who had assaulted him.  He went out of the hotel to the landing at the top of the steps which led down to the car park.  He saw a group of people which included his assailant.  He called out, "What the hell was all that about?"[7]

   [7][2005] QSC 367 at [8].

1. As the appellant walked towards the group of people, Brian Michell broke away from the group and ran towards the appellant.  He punched the appellant in the face and, at the same time, Kaden Michell hit the appellant from behind.  The appellant fell to the ground.  There he was kicked by his assailants.[8]

   [8][2005] QSC 367 at [8], [22].

1. The Michell brothers were restrained by others including hotel staff.  They drove off from the hotel shortly afterwards.[9]

   [9][2005] QSC 367 at [10].

1. The trial judge found that, after the first attack on the appellant, hotel staff ejected Brian Michell, and that the Michell brothers were in the process of leaving the car park under the direction of the hotel staff when the second assault on the appellant occurred.[10]

   [10][2005] QSC 367 at [23].

1. As I have observed, the appellant's case at trial was that the respondents were negligent in failing to remove the Michell brothers from the premises before the assaults on the appellant and in continuing to serve them alcohol.  It was also contended that the respondents breached a duty owed to the appellant under the Liquor Act 1992 (Qld), but the primary judge held that the respondents owed no statutory duty to the appellant;[11] and, on the appeal, this conclusion was not challenged.

   [11][2005] QSC 367 at [46].

1. The respondents were not, and were not alleged to be, liable for the appellant's injuries merely because the injuries were inflicted while the appellant was on the hotel premises.  Furthermore, the appellant has not sought to make a case that the respondents were liable for the injuries inflicted by the second attack by reason of a failure on the part of the respondents to restrain the Michell brothers after the first attack on the appellant.  It is also to be emphasised that the issue is not whether the respondents had "reasonable cause" to eject the Michell brothers or to refuse them further service.  The issue here is whether reasonable care for the patrons of the hotel obliged the respondents to take such a course.  For the appellant to make good his claim of wrongdoing by the respondents, it was necessary for the appellant to establish that the respondents had reason to eject the Michell brothers in the interests of the safety of other patrons before the first assault on the appellant occurred, or to refuse them further service at some point before the first assault, and were negligent in failing to take either course.  In this regard, the appellant relied upon an incident which occurred earlier in the evening of 21 May and which was referred to at trial as "the Crabtree incident".

1. The trial judge found that when the Michell brothers arrived at the hotel, they were noticed because they were strangers to the hotel's staff and patrons, but not because there was anything unusual about their appearance or behaviour.[12] 

   [12][2005] QSC 367 at [36].

1. The Michell brothers became involved in a verbal disagreement with another patron, Mr Crabtree, resulting from Brian Michell's asserted resentment that Mr Crabtree had been looking at Michell's female companion.  Mr Crabtree told them to leave him alone.  There was no physical contact between Mr Crabtree and Brian Michell.[13]  The incident was quickly over.[14] 

   [13][2005] QSC 367 at [27], [37], [44].

   [14][2005] QSC 367 at [37].

1. The bar manager, Mr McDonnell, intervened apparently to make sure that the incident did not escalate.[15]  Ms Ottley, who was accompanying Mr Crabtree, said that she said to Mr McDonnell that "these guys were harassing us and were looking for a fight and what was he going to do about it".  Ms Ottley said that there was no physical aggression.  Ms Ranson, another patron of the hotel on the night in question, gave evidence that the Michell brothers "tried to take a drink of [Mr Crabtree's] drink and said horrible words to him".  This evidence was not supported by the other witnesses.  His Honour's findings suggest that he did not accept this aspect of Ms Ranson's evidence.  The appellant criticised his Honour in this regard, but there is nothing to suggest that Ms Ranson's evidence on this point should have been preferred to the evidence of other witnesses. 

   [15][2005] QSC 367 at [40].

1. The hotel continued to serve the Michell brothers with alcoholic drinks. Ms Garnham, a bar attendant at the hotel, gave evidence that she observed that the Michell brothers were drunk and truculent. She said that she suggested to Mr McDonnell that she did not intend to serve any further drinks to the Michell brothers. Mr McDonnell did not instruct her otherwise. He said he would keep an eye on the Michells,[16] and it appears from Mr McDonnell's statement that was tendered at trial that he subsequently served the Michell brothers two pots of full-strength beer.

   [16][2005] QSC 367 at [31].

1. According to Mr Rodgers, a barman at the hotel, the attack on the appellant occurred about half an hour to three quarters of an hour after the Crabtree incident.[17]  The trial judge found that, in the interim, Mr McDonnell and Mr Rodgers were watching for any sign of trouble from the Michell brothers.[18]  Mr McDonnell said that the Michell brothers and the ladies accompanying them went outside onto the patio.  No other evidence suggested that the behaviour of the Michell brothers during this time gave cause for concern.  The evidence of Mr Rodgers was that the Michell brothers sat quietly with their female companions.  Ms Ottley's evidence was that Mr Crabtree, the focus of the Michells' aggression, left the hotel before the first assault on the appellant. 

   [17][2005] QSC 367 at [34].

   [18][2005] QSC 367 at [34].

1. The trial judge concluded that the conduct of the Michell brothers prior to the assault on the appellant did not warrant their ejection from the hotel by the respondents.[19]

   [19][2005] QSC 367 at [44].

The appellant's argument

1. In this Court, the appellant argued that the undisputed evidence was that the Michell brothers' conduct towards Mr Crabtree was so serious and violent as to warrant their ejection from the hotel.  In developing this argument, the appellant asserted that the trial judge's conclusion to the contrary carries the implication that his Honour erroneously regarded the Crabtree incident as "trivial and involved no violence".  In this regard, the appellant seized upon his Honour's observation that:[20]

"Common sense suggests that if every patron of a hotel who exchanged a cross word with another patron over some perceived slight was ejected on the off chance that they might later launch an unprovoked and unexpected attack upon somebody entirely different, many such establishments would be largely empty."

[20][2005] QSC 367 at [44].

1. His Honour's observation in no way implies that he considered that the Crabtree incident was trivial or non-violent.  His Honour was simply making the obviously correct point that a verbal altercation is a commonplace event in hotels and bars, and, of itself, could not usually be regarded as warranting the expulsion of the antagonists to ensure the safety of other patrons.  His Honour did not trivialise or understate the significance of the Crabtree incident.  It was of sufficient concern to lead Mr McDonnell to intervene and to cause Mr Rodgers and Mr McDonnell to be alert for other signs of a disposition towards misconduct on the part of the Michells.  The point is, however, that, after the Michells had moved to the patio and left Mr Crabtree in peace, there were no such signs.  The Crabtree incident was brief, and, to all appearances, had been resolved.  There was no evidence of the slightest manifestation of simmering ill will on the part of the Michell brothers towards Mr Crabtree, much less towards any other patron.

1. In the light of the trial judge's findings of fact, one looks in vain for facts which might be used as the basis for a conclusion that reasonable care for other patrons of the hotel required nothing less than the removal of the Michell brothers from the premises after the Crabtree incident.  At one point in the submissions advanced on behalf of the appellant, it was urged that considerations of "custom and usage" supported that conclusion.  But no evidence from anyone shown to be experienced and expert in hotel management was adduced to establish that a moment of irrational unpleasantness, not involving physical contact, is regarded as requiring the immediate removal of either or both participants as the only adequate response.  The appellant argues that the irrationality of the Michells' altercation with Mr Crabtree was such as to make it obvious to everyone that the Michell brothers wanted a fight.  But whether the pretext for the confrontation with Mr Crabtree was irrational or not, it was the same kind of incident with which those responsible for hotel management must deal on a regular basis.  There was no evidence by reference to any industry standards or "custom and usage" that the respondents' handling of the Michells was such as to expose the hotel's other patrons to an unreasonable level of risk.

1. The particular point which the appellant presses on appeal is that the Michells were so drunk that Ms Garnham had been moved to tell Mr McDonnell that she was not going to serve them any more alcohol after the Crabtree incident.  Her observation was that the Michells were "just there for a fight".  The evidence of Ms Ottley and Ms Ranson was to similar effect.  The appellant's contention is that Mr McDonnell was negligent in failing to remove the Michells and in serving them more alcohol.

1. The primary judge was evidently not disposed to treat Ms Garnham's assessment as a standard of reasonableness by which to measure the adequacy of the response by Mr McDonnell to the "problem" posed by the altercation between Brian Michell and Mr Crabtree.  The appellant's argument identifies no reason why Ms Garnham or, for that matter, Ms Ottley or Ms Ranson, should be regarded, by virtue of any experience or expertise which they may or may not possess, as the embodiment of the reasonable hotelier for the purpose of giving content to the concept of reasonable care against which to judge the respondents' conduct. 

1. Moreover, even if Ms Garnham's views could be regarded as reflecting the appropriate response to the Crabtree incident, it must be acknowledged that Ms Garnham did not raise with Mr McDonnell any suggestion that the Michells should be ejected from the hotel.  Indeed, Mr McDonnell told Ms Garnham that he was going to "keep an eye" on the Michells; and her evidence was that she was "happy enough with that". 

1. As to Ms Garnham's suggestion that the Michell brothers should not be served any more alcohol, there is no evidence that the Michells consumed an amount of alcohol after the Crabtree incident sufficient to affect adversely their behaviour towards other patrons.  In the absence of any such evidence, there was no compulsion on his Honour, and it is certainly not open to this Court, to find that the Michells became more intoxicated or quarrelsome after the Crabtree incident as a result of the alcohol they consumed in the interim so as significantly to increase the risk of an unprovoked assault by the Michells on other patrons of the hotel.

1. For the sake of completeness, I should mention that, at trial, some witnesses had expressed the view that the Michell brothers may have been affected by the consumption of drugs other than alcohol.  The trial judge declined to regard that evidence as sufficient to warrant a finding to that effect.[21]  In my respectful opinion, his Honour's conclusion in this regard was plainly correct.

   [21][2005] QSC 367 at [38].

1. In my respectful opinion, the appellant has not shown a basis for setting aside the findings of fact on which the primary judge's decision was based, or the conclusion which his Honour drew from those facts.  It is unfortunate that the appellant would seem to have no adequate remedy for the serious injuries he has suffered.  Presumably, civil proceedings were not brought against the Michell brothers because they are unlikely to have the financial resources to meet any judgment which might be recovered against them.  However that may be, on the findings of fact made by the trial judge, it cannot be said that the respondents were legally responsible to the appellant for the injuries wrongfully inflicted by the Michell brothers.

Conclusion and orders

1. The appeal should be dismissed.  It is not necessary to make any order in relation to the respondents' cross-appeal.

1. The appellant should pay the respondents' costs of and incidental to the appeal to be assessed.

1. HELMAN J:  I agree with the orders proposed by Keane JA and with his reasons.