Laszlo Joseph Chordas v Bryant (Wellington) Pty Limited [1988] ACTSC 8 (24 February 1988)

SUPREME COURT OF THE ACT

LASZLO JOSEPH CHORDAS v. BRYANT (WELLINGTON) PTY LIMITED
S.C. No. 8 of 1986
Negligence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Gallop J.(1)

CATCHWORDS

Negligence - occupier's liability - hotel proprietor's duty to patron of hotel - foreseeability

Negligence - breach of Liquor Ordinance 1975, s.79 - assault of patron by another intoxicated patron - causation

Liquor Ordinance 1975, s.79

Barclays Bank v Tom (1923) 1 KB 221

Phillips v E.M. Moore Pty Ltd and Anor (1972) 2 NSWLR 378

Australian Safeway Stores Pty Limited v Zaluzna (1987) 69 ALR 615

Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614; 56 ALR 417

Papantonakis v Australian Telecommunications Commission [1985] HCA 3; (1985) 156 CLR 7; 57 ALR 1

Eggins v Canberra Enterprises Pty Limited (1974) 2 ACTR 66

HEARING

CANBERRA
24:2:1988

ORDER

1. There be judgment for the defendant.

2. The plaintiff pay the defendant's costs.

DECISION

This is an action for damages for personal injuries brought by the plaintiff against the defendant as the occupier and licensee under the Liquor Ordinance 1975 of the Hotel Wellington, Barton, in the Australian Capital Territory. The action was instituted by Writ of Summons issued 6 January 1986 and arises out of an incident in the saloon bar of the hotel on the evening of 15 July 1983 when the plaintiff was assaulted by another patron of the hotel and sustained injuries.

The Pleadings

2. The plaintiff's cause of action against the defendant is for negligence, particulars whereof are pleaded as follows:

(a) Permitting one Stephen King to remain on the

defendant's premises when it was unsafe to others
for him so to remain;

(b) Providing intoxicating liquor to the said King
when it was unsafe to do so;

(c) Failing to warn the plaintiff of the danger
constituted by the presence of the said King on
the defendant's premises;

(d) Failing to protect the plaintiff from King whilst
King was on the defendant's premises;

(e) Failing to observe the terms of Section 79 of the
Liquor Ordinance 1975.

3. The plaintiff also pleads breach of s.79 of the Liquor Ordinance 1975 in that the defendant supplied liquor to Stephen King when there were reasonable grounds for believing that he was intoxicated and claims that the consequence of that offence gives rise to a personal cause of action by the plaintiff against the defendant.

4. The defendant has denied the facts of the assault relied upon by the plaintiff, has separately pleaded provocation on the part of the plaintiff and alleged contributory negligence, particulars whereof are pleaded as follows:

(a) Failure to withdraw from a potential aggressor.

(b) Failure to report the behavious of a potential
aggressor so that he could have been removed from
the premises.

(c) Provoking an assault upon himself by aggressive
language and conduct directed to Stephen King and
assaulting Stephen King prior to the assault
relied on.

5. The defendant issued a third party notice to Stephen King pleading the plaintiff's claim against the defendant and asserting that it was an implied term of King being permitted to be on the defendant's premises that he would behave in a reasonable manner towards other persons upon the premises and that he failed so to behave.

6. By his defence to the third party claim, King put in issue every allegation raised by the defendant against him.

7. At the commencement of the hearing counsel for the plaintiff, defendant and third party respectively informed the court that the issues between the third party and the defendant were to be tried concurrently with the issues between the plaintiff and the defendant. The hearing proceeded accordingly. On the second day counsel for the third party applied for the issues between the third party and the defendant to be heard separately and subsequently to the determination of the issues between the plaintiff and the defendant. The application was consented to by counsel for the defendant and opposed by counsel for the plaintiff.

8. The ground of the application was basically that the third party had no interest in the determination of the issues between the plaintiff and the defendant and from the point of view of cost and convenience, it would be more suitable to the third party for the issues between the third party and the defendant to be heard and determined subsequently to the hearing and determination of the issues between the plaintiff and the defendant. Counsel relied upon Barclays Bank v. Tom (1923) 1 KB 221 at 223-224, where Scrutton LJ said in relation to third party proceedings:

"The defendant thinks if he is liable he has a claim
over against a third party. With that matter between
the defendant and the third party the plaintiff has
obviously nothing to do. He is not concerned with the
question whether the defendant has a remedy against
somebody else. His remedy is against the defendant.
But the defendant is much interested in getting the
third party bound by the result of the trial between
the plaintiff and himself, for otherwise he might be
at a great disadvantage if, having fought the case
against the plaintiff and lost, he had then to fight
the case against the third party on different
materials, with the risk that a different result might
be arrived at. The object of the third party
procedure is in the first place to get the third party
bound by the decision between the plaintiff and the
defendant. In the next place it is directed to
getting the question between the defendant and the
third party decided as soon as possible after the
decision between the plaintiff and the defendant, so
that the defendant may not be in a position of having
to wait a considerable time before he establishes his
right of indemnity against the third party while all
the time the plaintiff is enforcing his judgment
against the defendant. And thirdly, it is directed to
saving the extra expense that would be involved by two
independent actions."

9. The application was opposed by counsel for the plaintiff basically for evidentiary reasons relating to alleged admissions made by the third party in the course of investigations into the incident by the Australian Federal Police. Counsel relied upon Phillips v. E.M. Moore Pty Ltd and Anor (1972) 2 NSWLR 378.

10. As, in my opinion, any evidence of admissions made by the third party to police officers would not have been admissible against the defendant in the determination of the issues between the plaintiff and the defendant, I held that the plaintiff's opposition to the application should not be upheld. I ordered that the hearing and determination of the issues between the third party and the defendant be heard subsequently and after the determination of the issues between the plaintiff and the defendant. I adjourned the third party proceedings to a date and place to be fixed (see Order 20, rule 9). Counsel for the third party then withdrew and the hearing proceeded on the issues between the plaintiff and the defendant.

The Evidence

11. The plaintiff is a married man with three grown up sons. He was born on 11 May 1939 (now 48 years of age) in Hungary. He came to Australia in 1957, was married in 1965 and obtained citizenship in 1973. In July 1976 he commenced employment with John Holland Constructions Pty Ltd as foreman at their Googong Dam site. On Friday, 15 July 1983 he left work at about 6.00 pm to have his customary social gathering with fellow employees of John Holland Constructions Pty Ltd at the Hotel Wellington. He arrived at about 6.15 pm and joined a group of fellow employees in the saloon bar. There were about six or seven men in the group. The plaintiff was drinking light beer and when the incident giving rise to the cause of action occurred, he had consumed four to five middies. He said in evidence that although he did not recall the incident very well after it happened he now had some better recollection and proceeded to give evidence according to that recollection.

12. The facts giving rise to the incident and the incident itself were very much in issue and it is necessary to examine the evidence.

13. The plaintiff said he went to the bar to order some drinks, which he did, but when they arrived he could not get them off the bar because there were a couple of big men right in front of where the barmaid had put the drinks. He asked politely to be allowed to get access to the drinks. One of them said words to the effect "Go and get lost" and also asked him what he was doing "up there", indicating Parliament House. It was common ground on the hearing that John Holland Constructions Pty Ltd and Concrete Constructions Pty Ltd were engaged in the construction of the new Parliament House as a joint venture. The plaintiff said that he replied that he was not doing anything up there but was working for John Holland Constructions Pty Ltd at Hume. There was some discussion then with one of the two men about another supervisor named Ross White. The plaintiff handed one of the men a beer which he had just purchased and walked away, taking with him the other drinks back to the group with whom he had been drinking.

14. After a short while he had to go back to the bar to get some more drinks. He was heading back, or was turning around to go back, and the next thing he remembered was waking up in Royal Canberra Hospital. He had no recollection of the incident itself.

15. Stephen James Hobcroft gave evidence on behalf of the plaintiff. He said that at the time of the subject incident he was the area manager for John Holland Constructions Pty Ltd at the Parliament House site. He said that he had arrived at the Hotel Wellington at about 7.30 pm. On arrival he saw the plaintiff there. He also spoke to King whom he knew as a crane driver at Parliament House. King was at the bar with two other crane drivers. The incident between the plaintiff and King occurred about three-quarters of an hour after Hobcroft arrived. At that time he had observed the plaintiff drinking beer. He was sober. He himself had consumed about four Carlton shandies. So far as King was concerned, he noticed that his speech was slurred, his eyes glazed, his face red and that he was unstable, leaning against the bar and lurching around a bit. He formed the opinion that King was intoxicated.

16. In the period leading up to the incident, King remained at the bar drinking beer. He said that he saw King hit the plaintiff. The plaintiff was standing to the right and King's party was standing to the left. They were at an angle of about 45 degrees to each other. King hit the plaintiff with his right arm on the left side of the plaintiff's face. The plaintiff went straight down hitting the back of his head on the bar as he fell. He was unconscious with blood at the back of his head. Hobcroft said in his evidence in chief that he did not see the plaintiff do anything to King before the incident occurred. Later in his evidence he said that he had not anticipated anything of that nature, meaning the punch from King to the side of the plaintiff's face.

17. In cross-examination he said he did not believe that the plaintiff was intoxicated. So far as the facts of the incident are concerned, he said that his recollection was very clear, that he could not be mistaken, and that the third party's right hand had hit the left side of the plaintiff's face. This evidence was, of course, different to the plaintiff's evidence as to the facts of the incident. The plaintiff had said that he was hit on the right side of the face. Hobcroft further conceded in cross-examination that the conversation between the plaintiff and King prior to the incident had appeared to him to be peaceful and without aggravation. He said the Saloon Bar was busy at that time of night. He denied having seen the plaintiff poke King in the chest prior to being punched.

18. Mr William Wolstencroft, building project manager of the plaintiff's company at the relevant time, said in evidence that he had gone to the saloon bar of the Wellington Hotel with his son soon after 7.00 pm. It was his practice to go to that hotel on Friday nights to have a drink with fellow workers. In the saloon bar he saw three men at the bar whom he now knows as King, Saunders and McMahon. Saunders was on the left, King in the middle and McMahon on the right. They seemed to be occupying almost half the bar. He detailed his observations of King and expressed the opinion that he was very much under the influence of intoxicating liquor.

19. At about 8.30 pm the plaintiff went to get some drinks from the bar and someone shouted out to him to get another drink. He turned around to his left in response to what was said to him and King, who had been standing behind him but was then side on as the plaintiff turned, hit the plaintiff with one straight right punch with a fist to the right side of the plaintiff's face. Wolstencroft agreed that the blow was "out of the blue" and a "king hit". He agreed that it was "unprovoked, instantaneous and unpredictable". McMahon then remonstrated with King, saying that he should not have done that. There was a fight between King and McMahon. King got the better of McMahon, who ended up in a chair in a corner. King then left the saloon bar.

20. Wolstencroft made no report to the police of what he had observed, either that night or subsequently. He had seen the police at the hotel and was an eye witness to the affair, but he did not volunteer the information in his possession.

21. Mr Roland Norman was another important witness as to the facts of the incident, although he did not actually observe the punch being thrown. He too was in the saloon bar as one of the group of employees of John Holland Constructions Pty Ltd. He also knew King quite well as he had worked with him in 1972 and actually employed him at the Parliament House site.

22. He said that the saloon bar was packed out and very noisy. He saw King leaning on the bar in the company of two other crane drivers, Saunders and McMahon. The plaintiff had arrived a bit later on. He came in and went to the bar. Norman observed him talking to King who was holding the plaintiff's hand. Norman went over to the plaintiff and King and said to the plaintiff words to the effect, "Have you got the drinks yet Les". He then turned to King and said, "This is Les. He knows Ross White". He then said to the plaintiff, "This is Ross White's nephew. He has worked with Ross on other jobs". Norman then gave evidence of his observations of King and said that at the time he had concluded that King was extremely drunk.

23. Norman said that the plaintiff went to the bar. While he was there, Norman called out to the plaintiff to get a couple more drinks. Norman then turned back to the conversation that he was having in the group, which meant that he had his back to the plaintiff and the bar area. He noticed that all the background noise went quiet. He looked around and saw the plaintiff lying on the floor bleeding from the head. He too conceded in cross-examination that neither in his statement to the police made on 20 January 1984, nor in his evidence in certain workers' compensation proceedings, had he mentioned King's drunkenness.

24. Sergeant R.S. Garbutt of the Australian Federal Police, Canberra, gave evidence on behalf of the plaintiff. He said that he attended at the saloon bar of the Wellington Hotel at about 9.00 pm on 15 July 1983. On arrival he saw the plaintiff sitting at the bar bleeding from a wound to the head. The plaintiff was conveyed to Royal Canberra Hospital by ambulance. Despite his enquiries Sergeant Garbutt could not ascertain what had happened and it was even suggested to him, as he set out in a Criminal Offence and Modus Operandi Report dated 10 August 1983, that the plaintiff was drunk and may have fallen over and hit his head.

25. He interviewed the plaintiff at the hospital after he had been treated. The plaintiff told him that he could not remember anything other than getting another beer from the bar. He took a statement from the plaintiff at his home on the evening of the following day, 16 July 1983. On that occasion the plaintiff had told him that he was drunk at the time and could not remember what had happened to him. In the written statement, however, the plaintiff did not say that he was drunk.

26. Sergeant Garbutt interviewed King in the presence of his solicitor on 8 August 1983 at the City Police Station. I shall refer to this evidence later.

27. There was no other evidence on behalf of the plaintiff in relation to the facts of the incident.

28. The defendant called King to give evidence. He said that he had arrived at the Wellington Hotel at about 5.45 pm in company with the two other crane drivers, Saunders and McMahon. He had been in their company all day. He said that during the day he had consumed only two beers at the airport at about 5.30 pm. At the hotel and while he was in the bar with Saunders and McMahon he was introduced to the plaintiff by Norman. He said that when Norman came over, he may have been speaking to the plaintiff at the bar. Norman told the plaintiff that King was a union delegate. The plaintiff became agitated and called King a "shit stirrer". McMahon told him to "rack off" and, as I understand the evidence, the plaintiff then went away.

29. Some time later he came back to the bar again and made similar remarks to King and his companions. He called King names such as "communist". This caused some offence and the three crane drivers moved twice further down the bar. One and a half hours passed and the plaintiff came back a third time to the three crane drivers and made further derogatory remarks such as "communist", "shit stirrer" and "red ragger". They moved again and the plaintiff again approached them in their new position. He poked King in the chest and called him "an asshole". As he was poked in the chest King was put off balance and spilled some drinks that were on a table. He lashed out with his right hand and struck the plaintiff in a backhanded fashion. McMahon grabbed King around the shoulders and those two then had an altercation. King said that he was very agitated at the time. When he hit the plaintiff, the plaintiff fell back and hit his head on a bar rail. After getting the better of McMahon, King left the hotel, went to the Manuka Football Club where he had one beer, then to the Manuka shops where he telephoned a taxi and went home.

30. He admitted to having drunk 15-18 middies up to the time he left the Wellington Hotel, but claimed that he was not affected to any great extent. He said that it was nothing for him to consume about 25 middies, that he had done it all his life, that he could drink 30 middies and not be staggering all over the place, and that he had never been barred from any hotel in his life.

31. In cross-examination he denied that he was pretty intoxicated, although he had told Sergeant Garbutt in the Record of Interview that he was. He frankly admitted having told Sergeant Garbutt many untruths in the Record of Interview because he thought that it would be in his interests to do so. He admitted that he was prosecuted for an offence of assault and was released on a bond. He said he was 36 years of age, six feet two inches in height and weighed 105-110 kilograms. He was about the same height and weight at the time of the incident. He denied in cross-examination that it was obvious that the plaintiff was trying to pick a fight and said that the plaintiff was offering insults for no reason at all.

32. Alan Norman Butt, crane driver, also gave evidence on behalf of the defendant. He said that he was in the saloon bar when King and the two other crane drivers walked in, having been there since 3.15-3.45 pm. There was nothing unusual about their behaviour. He said that King and the others were at the southern end of the bar. He noticed that they moved to the northern end. He heard words such as "union shit stirrer". He could not see where the words were coming from except that it was said by someone else in the group.

33. Peter Alan Wells, called on behalf of the defendant, said that he had been in the bar from about 5.00-5.30 pm and was drinking with Butt. He saw King and the others arrive and noticed them during the evening. There was nothing boisterous about their behaviour. Later they moved closer to where he and Butt were sitting. He spoke to King. There was nothing unusual about his speech and he was not lurching about. So far as the incident itself was concerned, the first thing he noticed was the person lying on the floor about two feet away from him.

34. Rodney Edward Saunders, called on behalf of the defendant, also gave evidence. He, of course, was one of King's companions. He said that they had arrived at the Saloon Bar between 6.00 and 6.30 pm. He saw the plaintiff in the bar at the southern end and saw him introduced to King by Norman. There was some discussion between the plaintiff and the crane drivers about unions and there was a heated argument between the plaintiff and King. The plaintiff was referring to the crane drivers as "union delegates", "red raggers", and "commos". Saunders said that he walked away and King joined them further down the bar. The plaintiff and Hobcroft approached the bar and bought a round. The plaintiff then approached his group and again made comments about them being union delegates who "had stuffed up workers on the hill". He called them "fucking shit stirrers". Saunders told the plaintiff to go away (using an expletive which it is unnecessary to repeat). Fifteen minutes later the plaintiff and another person came and spoke to McMahon, using similar colourful phrases. Saunders told the plaintiff to go away again, in equally colourful terms. Norman was talking to the plaintiff, Hobcroft and others. The plaintiff approached them again and said similar things about unions doing damage to the country. Saunders thereupon decided to leave. He was just opening the door, heard a bit of commotion, looked back and saw the plaintiff poke King in the chest. King gave him a backhander with his right hand which hit the plaintiff on the left side of his head around his ear. He saw the plaintiff start to fall. Saunders said he went out the door. He could not say whether King had used a clenched fist or open hand. He did notice a couple of drinks get knocked over by King stepping back and bumping a table. He said King was quite sober, not lurching, not unsteady and did not have glazed eyes.

Findings of Fact

35. At all material times the defendant was the proprietor and holder of the liquor licence in respect of the Wellington Hotel. I am satisfied on the balance of probabilities that the version of the altercation and the events preceding it given by King and the other witnesses called on behalf of the defendant is more probably correct. I do not accept King's evidence and the evidence of the other witnesses to the effect that he was not affected by intoxicating liquor. I find that he was well affected by intoxicating liquor when the assault took place. Whether his intoxication was so noticeable as to attract the attention of the hotel staff or the Manager is a matter to which I shall return.

36. I find that King, in the company of Saunders and McMahon, arrived at the Wellington Hotel at about 5.45 pm and commenced drinking at the curved end of the bar. The plaintiff came to that end of the bar to obtain a drink and in the course of obtaining the drink was speaking to King. Norman came over and introduced the plaintiff to King. The plaintiff expressed some resentment that King was a union delegate and made the offensive remarks to which I have referred earlier. The plaintiff was told by a member of King's group, probably McMahon, to go away. The plaintiff left King's group and moved further towards the centre of the bar.

37. Some time passed and the plaintiff came back to the bar and made similar offensive remarks to the group. King and his companions endeavoured to ignore the plaintiff and moved further down the bar. Something similar happened a third time when the plaintiff, who by then had consumed about five beers, again approached King's group and made similar offensive remarks. On that occasion he also poked King in the chest. He caused King to fall off balance to some extent and bump into a table, spilling some drinks. King was annoyed and punched the plaintiff with his right hand to the right side of the plaintiff's face. I accept Wolstencroft's description of the actual blow.

38. I am satisfied that when he struck the plaintiff King was well under the influence of intoxicating liquor. At that stage he had consumed a couple of beers at the Canberra Airport and 15 to 18 middies of beer at the Wellington Hotel.

39. Mrs Ardler, a barmaid employed by the defendant, said that she was sitting in the saloon bar having a drink after she had ceased duty and saw King in the bar. There was nothing about his behaviour which attracted her attention. In cross-examination she was shown a previous statement made by her in September 1983, that is a few months after the incident in the bar. In that statement she said that King and Saunders had come into the bar at about 6.00 pm, they were drunk and immediately started picking on other customers, especially the BLF members. She went on to say in the statement that King was usually quiet and no trouble unless prodded by Saunders. She said that what she meant by "drunk" was that Saunders and King could have been "slightly drunk", but she did not remember them being drunk.

40. As mentioned earlier, Wolstencroft formed the opinion on observing King that he was very much under the influence of intoxicating liquor. Norman concluded that he was extremely drunk. When interviewed by Sergeant Garbutt on 14 August 1983, King admitted that he was in a state of intoxication, he had consumed a considerable amount of alcohol when the incident took place, and had been drinking for 24 hours. He sought to retract those statements in his evidence and said that he had given those answers because he thought it might be in his interests to do so.

41. In all the circumstances, I am in no doubt that King was well affected when the incident took place. The question is whether the defendant, through its servants, was negligent in permitting King to remain on the premises in that condition and in continuing to serve him intoxicating liquor.

42. The plaintiff sought to establish that King had a known propensity for violence when under the influence of intoxicating liquor. The plaintiff called Jonathon Mark Flaherty, the Manager of the Wellington Hotel at the relevant time, to give evidence. He said that some two to three weeks prior to the subject incident, he had seen King outside the saloon bar, but still on the hotel premises, having a fight with another man. He said that he himself had come down and broken up the fight by standing between the two men. King was under the influence of alcohol at the time. As a result King was barred from the hotel for a week. He purported to identify King as a person present at court on the day he gave evidence. He described that man and the description fitted not King, but the witness Saunders. It soon became apparent that Flaherty was confused about the identity of the person whom he had barred for one week and, indeed, he conceded that he could have made a mistake.

43. The case took an unusual turn when the defendant later called Flaherty to give evidence on behalf of the defendant. In the course of that evidence he said that he recognised the people outside the court as members of the group who used to drink at the Wellington Hotel. It was one of that group whom he had barred, but he could not say which one was King and he could not say whether it was King that he had barred. Four men were then brought into court, including King and Saunders. Flaherty could not identify any one of them as being the one whom he had barred, but he thought that it was Saunders. He conceded that he could have been mistaken about having barred King.

44. To that unsatisfactory evidence must be added King's denial that he had ever been barred from the Wellington Hotel. Mrs Ardler had no knowledge of King ever having been barred. In her statement made on 21 September 1983, to which reference has already been made, she said the atmosphere in the bar always changed when Saunders came in because everyone was expecting trouble and it usually happened. The bar staff, including management, was always apprehensive. King on the other hand was usually quiet and no trouble, unless prodded by Saunders. There was other evidence from the witnesses Butt, Wells and Saunders that they had never seen him acting aggressively or violently when affected by alcohol.

45. I find on the balance of probabilities that, although King was well affected by intoxicating liquor at the relevant time, he was not known to be of violent or aggressive disposition or troublesome and prior to the incident was not behaving in such a way as to make his mere presence an obvious danger to other patrons in the bar. It is also relevant that at the time of the incident the bar was very crowded as was normal on a Friday night.

The Relevant Law

46. It is now clear law that the duty which an occupier of land owes to an invitee is part of the ordinary common law duty to take reasonable care. In Australian Safeway Stores Pty Limited v. Zaluzna (1987) 69 ALR 615 the High Court (Mason, Wilson, Deane and Dawson JJ) approved the statement of Deane J. in Hackshaw v. Shaw [1984] HCA 84; (1984) 155 CLR 614; 56 ALR 417 and in Papantonakis v. Australian Telecommunications Commission [1985] HCA 3; (1985) 156 CLR 7; 57 ALR 1. In Hackshaw v. Shaw CLR 662-3, ALR 452, Deane J. said:

". . . it is not necessary, in an action in negligence
against an occupier, to go through the procedure of
considering whether either one or other or both of a
special duty qua occupier and an ordinary duty of care
was owed. All that is necessary is to determine
whether, in all the relevant circumstances including
the fact of the defendant's occupation of premises and
the manner of the plaintiff's entry upon them, the
defendant owed a duty of care under the ordinary
principles of negligence to the plaintiff. A
prerequisite of any such duty is that there be the
necessary degree of proximity of relationship. The
touchstone of its existence is that there be reasonable
foreseeability of a real risk of injury to the visitor
or to the class of person of which the visitor is a
member. The measure of the discharge of the duty is
what a reasonable man would, in the circumstances, do
by way of response to the foreseeable risk. Where the
visitor is lawfully upon the land, the mere
relationship between occupier on the one hand and
invitee or licensee on the other will of itself suffice
to give rise to a duty on the part of the occupier to
take reasonable care to avoid a foreseeable risk of
injury to her or him. When the visitor is on the land
as a trespasser, the mere relationship of occupier and
trespasser which the trespasser has imposed upon the
occupier will not satisfy the requirement of
proximity. Something more will be required. The
additional factor or combination of factors which may,
as a matter of law, supply the requisite degree of
proximity or give rise to a reasonably foreseeable risk
of relevant injury are incapable of being exhaustively
defined or identified. At the least they will include
either knowledge of the actual or likely presence of a
trespasser or reasonable foreseeability of a real risk
of such presence."

47. In accordance with the dicta of the High Court in that case, and adapting them to the present case, the fact that the plaintiff was a lawful entrant upon the land of the defendant establishes a relationship between them which of itself suffices to give rise to a duty on the part of the defendant to take reasonable care to avoid a foreseeable risk of injury to the plaintiff.

48. I am indebted to counsel for their researches of the authorities in the United States of America and Canada. It appears that there is abundant authority in those countries dealing with negligence claims against hotels, restaurants, bars and similar establishments brought by patrons injured as a result of tortious or criminal acts of other patrons. It also appears that long before the decision of the High Court in the Australian Safeways case, the courts in those countries were applying the Donoghue v. Stevenson principle to the hotel occupier/bar patron invitee situation. In Australia the only reported case which counsel's researches have revealed is Eggins v. Canberra Enterprises Pty Limited (1974) 2 ACTR 66, a decision of this Court,, where Connor J. declined to find any negligence on behalf of the drive-in theatre occupier towards the plaintiff patron in respect of the behaviour of other patrons.

49. In 40 Am Jur 2d para.11, the following statements of principle appear:

"Although a proprietor of an inn, hotel,
restaurant, or similar establishment is not an insurer
of the safety of his guests or patrons against tortious
or improper acts or conduct of other guests, patrons,
or third persons, he is bound to exercise reasonable
care in this respect for their safety, and may be held
liable on the ground of negligence. Such a proprietor
is liable for injuries to guests or patrons caused by
accidental, negligent, or intentionally harmful acts of
other guests, patrons, or third persons, if, by the
exercise of reasonable diligence, he could have
discovered that such acts were being done or were about
to be done and could have protected his guests or
patrons by controlling the conduct of the tortfeasor or
by giving adequate warning to enable the guest to avoid
harm. But he is not bound to anticipate and guard
against the unusual or abnormal, or against something
which reasonable care, skill, or foresight could not
have discovered or prevented. And there is no duty
imposed on him to warn of obvious dangers created by a
third person, unless he had knowledge of such dangers
or unless knowledge may be inferred from the
surrounding circumstances or from the lapse of time."

Para.112 deals with assault and batter and reads:

"A proprietor of an inn, hotel, restaurant, or
similar establishment is liable for an assault upon a
guest or patron by another guest, patron, or third
person where he has reason to anticipate such assault,
and fails to exercise reasonable care under the
circumstances to prevent the assault or interfere with
its execution. Conversely, he is not liable for an
assault committed under such circumstances that it
could not reasonably have been anticipated in time to
prevent the occurrence. In a number of cases, it has
been held that a proprietor of an inn, hotel, or
restaurant is guilty of negligence toward his guests or
patrons if he admits to his establishment persons of
whose violent and disorderly propensities he has notice
or knowledge. An innkeeper who failed to protect a
guest after having been expressly warned by him of the
possibility of an assault by another guest has been
held liable therefor."

50. Several American and Canadian cases were cited in argument by counsel for the defendant. I do not propose to recite the facts of those cases but I cite them in the order in which they were cited by counsel so as to demonstrate that I have derived assistance from those cases: Moone v Smith et al (1909) 65 SE 712, 67 SE 836; Gurren v Casperson et al (1928) 265 p.493; Sidebottom v Aubrey (1939) 101 SW (2d) 212; Hughes v Coniglio (1946) 25 NW 405; Winn v Holmes (1956) 299 P (2d) 994; Kuznack v Walsh (1957) N.Y. Supp (2d) 971; Weihert v Piccione (1956) 78 NW (2d) 757; Kimple v Foster (1970) 469 P (2d) 281; Harvey v Van Aelstyn (1982) 319 NW (2d) 725; Getson v Edifice Lounge Incorp (1983) 453 NE (2d) 31; Hebert v Club 37 Bar (1985) 701 P. (2d) 847; Donaldson v Olympic Health Spa Inc (1985) 333 SE (2d) 98; Daniel v Days Inn of America Inc (1987) 356 SE (2d) 129; Gardner v McConnell (1946) 1 DLR 730; Hersse v Laurie & Anor (1962) 35 DLR (2d) 413.

The Decision

51. It does not emerge from the plaintiff's evidence that he expected or anticipated the blow struck by King. Hobcroft's evidence was to the effect that he himself had not anticipated anything of that nature. Wolstencroft gave similar evidence. It follows that, even accepting the versions of the incident as given by the plaintiff and his principal witnesses, the punch by King could not have been reasonably anticipated by the management or bar staff. King's version and that of the defendant's other witnesses likewise place the incident in the "unforeseeable" class. I am satisfied that the incident falls within the unexpected or unforeseeable class of incident which could not have been discovered or prevented by the management or bar staff of the defendant by the exercise of reasonable care.

52. Accordingly I am not satisfied on the balance of probabilities that there was any breach of the general duty of care owed by the defendant to the plaintiff and specifically in none of the respects alleged by the plaintiff in the pleadings.

53. With regard to the breach of s.79 of the Liquor Ordinance 1975, I find that the defendant committed the breach alleged in that it supplied liquor to King when there were reasonable grounds for believing that he was intoxicated. However, I can find no causal connection between that breach of the Ordinance and the injury which King inflicted upon the plaintiff. The proximate act causing the injury to the plaintiff was the blow by King, not the defendant's breach of the Ordinance by supplying liquor to King when he was intoxicated.

54. There will be judgment for the defendant.

55. In this case I have not embarked upon the assessment of damages because of certain views which I do not wish to express about the credibility of the plaintiff. I order that the plaintiff pay the defendant's costs.