The NSW Court of Appeal has allowed an appeal in part in relation to a violent altercation that took place at The Bucket List, a premises in Bondi Beach operated by Bondi Beach Foods Pty Ltd (Bondi Beach Foods). This article provides a case summary of Bondi Beach Foods Pty Ltd v Chadwick [2023] NSWCA 265.
Background
On 22 December 2017 Mr. Martin and a group of friends were drinking and socialising at a VIP table in the outdoor area of The Bucket List (the premises). They arrived around 5pm but had been drinking elsewhere earlier that day.
Mr. Chadwick and two friends arrived at the premises at 6pm. They walked past Mr. Martin's table as they arrived and a verbal interaction between the two groups took place. Mr. Chadwick and his friends thereafter went to the bar to purchase alcoholic drinks. They walked about the premises in search of a table and returned near Mr. Martin's table at approximately 6.06pm.
At the premises there were 2 RSA Marshals from Crossguard Group Pty Ltd (Crossguard), a security contractor, who were in the vicinity and observing the altercation. They did not however have any authority to touch patrons or escort them from the premises.
Another verbal altercation between the groups then took place. Mr. Chadwick pushed Mr. Martin. Mr. Martin in retaliation threw a jug toward Mr. Chadwick and it smashed on the ground. One of Mr. Chadwick's friends then pushed Mr. Martin. Mr. Chadwick moved quickly towards Mr. Martin and attempted to punch him in the face. Mr. Martin subsequently picked up a stool and hit Mr. Chadwick repeatedly. Mr. Chadwick fell to the ground sustaining serious injury. The incident was captured on CCTV.
Mr. Chadwick commenced proceedings in the Supreme Court of NSW against Bondi Beach Foods the owner and operator of The Bucket List and security contractor Crossguard, for damages arising as a consequence of injuries he sustained in the altercation.
Decision in the first instance
Mr Chadwick advanced his claim in negligence in two different ways.
- That Mr. Martin and his group were showing signs of intoxication in the hour before Mr. Chadwick arrived at the premises with his group, such that Bondi Beach Foods and Crossguard were in breach of duty by not removing them from the premises.
- If there had been sufficient licensed security guards present in the moments before the altercation, they would have more likely than not, intervened to de-escalate the situation, and Mr. Chadwick would not have been injured.
Both avenues to liability succeeded at trial. The primary judge entered judgment for Mr Chadwick against Bondi Beach Foods and Crossguard in the amount of $200,706.40 ($250,883 less 20% for contributory negligence).
Bondi Beach Foods and Crossguard were held equally liable.
Grounds of Appeal
Bondi Beach Foods appealed against the findings of duty, breach, causation, damages, and contributory negligence.
Crossguard cross-appealed on those same grounds and further appealed the assessment of apportionment of liability.
Mr. Chadwick cross-appealed on the assessment of damages, in particular the assessment of economic loss.
The principal issues on appeal were the findings of fact regarding the conduct of Mr. Martin and his group and the way the premises monitored for signs of intoxication, the nature and content of the duty of care owed by Bondi Beach Foods and Crossguard, whether each duty was breached, whether Mr. Chadwick had established causation, damages, and whether the assessments of contributory negligence at 20% and statutory contribution contained any appellable error.
Court of Appeal Decision
The Court of Appeal (per Leeming JA, Gleeson and Payne JJA agreeing) allowed the appeal in part.
The Court of Appeal held that the primary judge had not erred in establishing the nature and scope of the duty owed by Bondi Beach Foods and Crossguard to Mr. Chadwick. It found that the primary judge correctly characterised the duty owed by Bondi Beach Foods and Crossguard as one to take reasonable care to prevent injury to a patron from the violent, quarrelsome, or disorderly conduct of other persons.
The Court of Appeal held that Bondi Beach Foods and Crossguard should not have been found liable in negligence to Mr. Chadwick for failing to turn Mr. Martin and his group out of the premises before Mr. Chadwick arrived. It found that Mr. Martin did not demonstrate signs of intoxication before Mr. Chadwick's arrival, even though members of his group may have. The Court of Appeal was not convinced that Mr. Martin would have left if members of his group had been asked to leave.
The Court of Appeal found that both Bondi Beach Foods and Crossguard breached their duty of care to Mr. Chadwick in failing to have at least two licensed security guards on the premises at the time of the altercation. The Court of Appeal had regard to the history of intoxication and violence at the premises and the high-risk time when the altercation occurred.
The Court of Appeal further determined that the 50/50 apportionment made by the primary judge was correct.
The Court of Appeal found that Crossguard breached the duty of care owed when it supplied four security persons, not one of them a licensed security guard. It found that had at least 2 licensed security guards been provided their intervention would have prevented Mr. Chadwick from being injured.
The Court of Appeal found that given the risk of physical violence from patrons at the premises, Bondi Beach Foods should have ensured sufficient security was in place, including at least 2 licensed security guards.
The Court of Appeal considered the 20% finding of contributory negligence to be in error. The Court of Appeal held that the evidence supported a finding that Mr. Chadwick had escalated the altercation and continued to involve himself even after RSA Marshals attempted to intervene and therefore increased Mr. Chadwick's contributory negligence to 50%.
The Court of Appeal rejected Mr. Chadwick's cross appeal on the assessment of damages. They concluded that the most probable outcome would have been that Mr. Chadwick continued attempting to run his business at a loss regardless of the altercation. The Court of Appeal also held that he failed to establish any case for future economic loss.
Mr Chadwick's damages were reduced to remove the award for future economic loss and 50% for contributory negligence. The Court of Appeal entered judgment in favour of Mr. Chadwick in the amount of $112,941.50.
The decision highlights that consideration should be given to various factors when an injury takes place in such circumstances including whether a venue had adequate security measures in place and was able to ensure that any person engaged to perform security services is licensed and competent to undertake those duties. One should also consider whether a venue demonstrates sufficient monitoring of patrons on a premises for signs or intoxication or anti-social behaviour and take action to remove them or their entire group who might demonstrate that behaviour proactively.
The decision also reinforces the importance of identifying the risk of harm in order to apply sections 5B and 5C of the Act and the need to satisfy the criteria set out in section 13 of the Act when assessing future economic loss. You can read the full Judgment here.
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