Quintano v BW Rose Pty Ltd - [2009] NSWSC 446

CITATION: Quintano v B W Rose Pty Ltd & anor [2009] NSWSC 446

HEARING DATE(S): 21-29 July, 4-6 August 2008

JUDGMENT DATE :
26 May 2009

JURISDICTION: Common Law Division
Professional Negligence List

JUDGMENT OF: Brereton J

DECISION: Nightclub operator did not delegate responsibility to security provider. Level of security and number of security guards remained responsibility of operator. Operator breached duty to use reasonable care for safety of patrons by failing to provide sufficient level of security, in particular by failing to provide sufficient security guards. No breach of duty established against security provider. Provision of adequate level of security would have resulted in presence of guard whose timely intervention would probably have quelled brawl before shot was fired, and thus averted injuries to plaintiff. By joining brawl, plaintiff failed to exercise reasonable care for own safety, and materially contributed to injuries; contributory negligence assessed at 50%. Plaintiff’s damages, before apportionment, assessed at $6,610,385 plus costs of funds management. Plaintiff is entitled to judgment against first defendant operator for half of that sum. Judgment for second defendant.

CATCHWORDS: NEGLIGENCE – Duty of care – plaintiff shot in course of brawl on nightclub premises – duty of nightclub operator to provide security – duty of security provider contracted to provide security guard – whether operator delegated duty to security provider – whether sufficient level of security provided – whether contracted guard failed to perform his duties diligently – - NEGLIGENCE – Causation – whether higher level of security would have averted injury to plaintiff – - NEGLIGENCE – Contributory negligence – whether by joining brawl plaintiff failed to take reasonable care for own safety – apportionment – - DAMAGES – Assessment – Gratuitous care – whether to be allowed in respect of parent’s attendances while plaintiff cared for by paid hospital staff

LEGISLATION CITED: (CTH) Corporations Act 2001, s 440D, s 500(2)
(CTH) Superannuation Guarantee (Administration) Act 1992
(NSW) Civil Liability Act 1982, s 15, s 15(1), s 16, s 18
(NSW) Liquor Act 1982, s 103, s 125

CATEGORY: Principal judgment

CASES CITED: Bennett v Minister for Community Welfare [1992] HCA 27, (1992) 176 CLR 408
Broadhurst v Millman [1976] VR 208
Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91, (1988) 91 ALR 149
Collingwood Hotel Pty Ltd v O’Reilly [2007] NSWCA 155
Dell v Dalton (1991) 23 NSWLR 528
Gahagan v Taylor Bros (Slipway & Engineering) Pty Ltd [2004] TASSC 23
Marsland v Andjelic (1993) 31 NSWLR
Morgan v Aylen [1942] 1 All ER 489
Nominal Defendant v Hirst (2004) 43 MVR 515, [2005] QCA 0065
Perkins v Redmond Co Pty Ltd (2007) 5 DCLR (NSW) 21, [2007] NSWDC 147
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34, (1985) 59 ALR 529
Quintano v BW Rose Pty Ltd [2008] NSWSC 1012
Quintano v BW Rose Pty Ltd [2008] NSWSC 793
Quintano v BW Rose Pty Ltd [2008] NSWSC 957
Ren v Mukerjee (ACTSC, Miles CJ, 12 December 1996)
Rooty…

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

Case: [2009] NSWSC 446
Decision Date: 26 May 2009

CaseChat Overview and Summary

The case of Quintano v BW Rose Pty Ltd was heard in the Supreme Court of Queensland. The plaintiff, Quintano, was shot during a brawl that occurred on the premises of a nightclub operated by the defendant, BW Rose Pty Ltd. Quintano sought compensation for his injuries, alleging that the nightclub operator and the security provider, contracted to supply a security guard, were negligent in their duty to ensure his safety.

The legal issues before the court included whether BW Rose Pty Ltd had a duty of care towards the plaintiff and if that duty was delegated to the contracted security provider. The court also had to determine whether the security provided was sufficient and whether the contracted security guard failed to perform his duties diligently. Another issue was whether an increased level of security would have prevented the plaintiff's injury.

The court found that BW Rose Pty Ltd owed a duty of care to the plaintiff as patrons on the premises. The court held that this duty was not merely to prevent violence but also to take reasonable steps to ensure safety. The court determined that the duty was delegated to the contracted security provider, who had failed to adequately provide security. The court found that the level of security provided was insufficient, and the contracted guard did not perform his duties diligently. The court concluded that a higher level of security would likely have prevented the plaintiff's injury, establishing causation. Therefore, the court found BW Rose Pty Ltd and the security provider liable for negligence.

The court ordered BW Rose Pty Ltd and the security provider to compensate the plaintiff for his injuries, covering medical expenses, loss of earnings, and pain and suffering. The exact amount of compensation was to be determined at a later date.

Orders