Alcohol related violence and the common law
QBE v Orcher; Bowcliff v Orcher  NSWCA 478
An unfortunate trend in more recent times is the severity of physical attacks being perpetrated by young, intoxicated, generally male Australians.
The NSW Premier Barry O’Farrell has listened to the overwhelming public outcry to do something, and in doing something has upset more than a few publicans and licensed premises owners by placing certain restrictions on certain businesses.
Running in tandem with the legislative changes is the common law. The common law has been described as “...the common sense of the community, crystallised and formulated by our ancestors”. If this is accurate, then the One Punch Can Kill campaign should receive valuable support from courts applying common law principles.
Pubs and clubs owe a general duty at common law to exercise reasonable care to avoid a foreseeable risk of injury to patrons. Importantly that duty of care owed to patrons can extend beyond the boundary of the licensed premises.
In the case of QBE v Orcher; Bowcliff v Orcher  NSWCA 478 the New South Wales Court of Appeal considered whether the trial judge had erred in finding that Bowcliff Pty Ltd t/as the Bridge Hotel (the hotel) and a security company, DSSS Cousins Pty Ltd (DSSS) had breached the duty of care they owed to John Orcher, a patron of the hotel, when he was punched by an employee of the hotel across the street from the pub.
At approximately 4:50am on Sunday 25 November 2007, Orcher sustained serious head injuries after being punched by the hotel’s employee, Tamiano Paseka. The punch caused Orcher to fall to the ground striking his head on the concrete footpath. The incident took place opposite to the hotel on the corner of Victoria Road and Wellington Street in the suburb of Rozelle in Sydney. Prior to the incident, Orcher had an altercation with another man by the name of “Izzy”.
On the night of the incident a senior security guard employed by the hotel, Heamasi Lokotui, was on duty. DSSS also provided two qualified security guards, Stegnajaic and Paea.
Tamiano Paseka, who assaulted Orcher, was employed as a glass collector. His duties did not extend to collecting bottles outside the confines of the hotel or relieving patrons in Wellington Street of bottles of alcohol. Paseka was not trained to assist in altercations between patrons.
The evidence at trial was that Paseka had consumed a number of bourbon and cokes during his breaks and that at one stage he told his manager that he had too much to drink and could not work anymore. It was when he went out the front of the hotel to have a cigarette in the early hours of the morning that he noticed Orcher and Izzy.
Orcher’s argument was that:
(a) The security company and hotel owed a duty to take reasonable care to avoid the foreseeable risk of harm of an untrained, unqualified employee overreacting when intervening in an altercation between patrons, whether inside or outside of licensed premises.
(b) That duty was breached when the DSSS employee, Mr Paea, failed to prevent Mr Paseka from intervening in what appeared to be an altercation between patrons.
(c) Alternatively Mr Paseka, as a hotel employee, had no place to be present on the footpath outside the Wellington Street entrance to the hotel. Consequently, the hotel was in breach of his duty of care by failing to require Paseka to re-enter the hotel in order to avoid the possibility that as an untrained and unqualified employee, he might intervene in an altercation between patrons of the hotel within the vicinity of the licensed premises.
The trial judge found in favour of Orcher and apportioned 30% of the responsibility to DSSS (and its insurer, QBE) and 70% to the hotel. This finding was on the basis that the hotel did not take any or any reasonable steps to prevent the attack on Orcher.
The hotel’s security handbook required security staff to maintain vigilance. The trial judge was of the view that the assault was unprovoked but nevertheless predictable, which is what the security staff were there to prevent. The trial judge also said that Mr Paseka was not severely intoxicated at the time of the assault.
DSSS and the hotel appealed.
The Court of Appeal allowed the appeal. What was happening on the other side of Wellington Street was some 15 metres from where Mr Paea (the DSSS security guard) was standing, and there was insufficient evidence to show that that the verbal exchange between Orcher and Izzy was potentially violent. Therefore, there was nothing which called for Mr Paea to intervene when Mr Paseka crossed the road.
When Mr Paea formed the view that things looked as though they might be getting out of hand, he immediately reported to the security guard inside the hotel in accordance with the hotel's security protocol. However, the assault took place without warning. A conclusion that Mr Paea’s failure to intervene at any earlier point of time constituted a breach of duty could therefore only be made with the benefit of hindsight.
This case highlights the fact that a duty of care owed to patrons by the owners and occupiers of pubs and clubs may extend beyond the hotel boundary when the owner/occupier is aware that a patron is at risk of injury and is able to react to prevent or otherwise deal with that risk.