McNally v Spedding; Nobles v Spedding

McNally and Nobles (the appellants) appealed to the Court of Appeal of New South Wales against a judgment of the District Court which found in favour of Spedding (the first respondent) and another defendant (the second respondent). The dispute concerned injuries sustained by the appellants when one was assaulted by a patron of a hotel operated by the first respondent. The appellants had complained to the hotel manager about the initial assault and identified the assailant on the premises. Despite this, the appellants left the hotel, but subsequently re-entered and were assaulted again, suffering injuries.

The central legal issues before the Court of Appeal were whether the trial judge erred in failing to consider a specific matter raised by the appellants, and more broadly, whether the first respondent owed a duty of care to the appellants to protect them against the criminal acts of a third party. This involved determining whether the failure to remove the identified assailant after the initial complaint created a foreseeable risk of injury to other patrons, thereby giving rise to a duty to protect them. The court was required to consider the application of the principle established in *Modbury Triangle Shopping Centre Pty Ltd v Anzil* concerning a special relationship or a degree of control that might impose such a duty.

The Court of Appeal found that there was no basis for a finding of liability against the second respondent. However, regarding the first respondent, the court determined that the circumstances warranted a new trial on the question of liability. This suggests that the court considered the potential for a duty of care to have arisen, particularly in light of the identified assailant remaining on the premises after a complaint was made.

Leave to appeal was granted in the case of McNally, and both cases were referred back to the District Court for a new trial solely on the issue of liability as against the first respondent.