TAB Limited v Atlis

TAB Limited appealed a decision of Phegan DCJ concerning an assault that occurred at a TAB agency. The claimants, who were patrons of the agency, alleged that TAB Limited, as the occupier, owed them a duty of care to prevent harm brought about by the unlawful behaviour of a third party. The core of the dispute revolved around whether TAB Limited had breached this duty by failing to control the continued presence of the third party on the premises and whether this failure caused the claimants' injuries.

The Court of Appeal was required to determine whether TAB Limited owed a duty to prevent harm caused by the unlawful behaviour of a third party on its premises. Specifically, the court considered the scope of that duty, including whether it extended to preventing the continued presence of a disruptive individual. The court also had to assess whether any failure to act constituted negligence, distinguishing it from a mere error of judgment, and whether the impossibility of physically removing the threat without police assistance meant that the appropriate course of action was to summon the police. Finally, the court examined the issue of causation, determining whether TAB Limited's actions or omissions had caused the claimants' injuries.

The Court of Appeal found that TAB Limited did owe a duty of care to its patrons to take reasonable steps to prevent harm from the unlawful conduct of third parties. The court reasoned that while an occupier is not an insurer of patrons' safety, they must take reasonable precautions. In this instance, the disruptive behaviour of the third party was known, and the failure to summon police assistance when it was impossible to physically remove the threat constituted a breach of that duty. The court distinguished this from a mere error of judgment, finding that the inaction was negligent.

The Court of Appeal granted leave to appeal, upheld the appeal, and set aside the judgment and verdict of the trial judge. The court entered judgment in favour of the claimants and ordered TAB Limited to pay the costs of the trial. A certificate was to be granted to the opponent under the Suitors' Fund Act 1951 (NSW) if otherwise entitled.