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Everett v Comojo, Court of Appeal, 18 January 2011

4 February 2011
The issues

Duty of care – foreseeability – nightclub – duty to protect a guest from actions of third party.

The facts

On the 9th October 2002 Robert Everett and Karl Harrison went to the Met Bar, which was part of the Metropolitan Hotel in London. The bar was restricted to members and guests and residents of the hotel. The bar could be entered from the hotel lobby or directly from the street. It was managed by Mr Rosenblatt and security staff were provided by Darkstorm Trading Ltd (trading as Panther Security). They were CCTV cameras in the bar.

The Claimants arrived at about 11pm as the guests of a member. A little later a waitress, a Ms Tanya Kotze, was touched on the bottom by one of the group in which the Claimants were standing. She thought it was Mr Harrison. She did not want to make a fuss but the incident was seen by a club member called Sami Balubaid. He was aggrieved on her behalf and told her more than once that those responsible would apologise to her before the end of the evening. Mr Balubaid was a regular guest at the bar and was a valued customer. He was usually accompanied by a bodyguard named Abu.

At some point, Ms Kotze spoke to Ms Albls (who was described as the “hostess” and was senior to Ms Kotze) about the incident and what Mr Balubaid had said.

Later still Mr Balubaid asked Ms Kotze to put the name of Cecil Croasdaile, who he described as his driver, on the guest list. This was so the door supervisor would know that someone was to be admitted. Ms Kotze spoke to Ms Albls and Coasdaile’s name was put on the list. He sat with Mr Balubaid and a blonde woman. He was of unusual appearance with a physique like a bodybuilder. Ms Albls described his demeanour as “assertive, bold and aggressive”. Ms Kotze was concerned about him as she thought he looked “scary”. She was worried that Mr Balubaid would send the man over to get an apology for what had happened. She went to Mr Rosenblatt and told him about her worry. On returning to the bar she heard the sound of breaking glass. Mr Balubaid had asked Mr Everett for an apology and Mr Everett had told Mr Balubaid to “piss off”. He was then punched in the face by Croasdaile, who produced a knife and stabbed Mr Everett in the neck. He pursued Mr Harrison and attacked him before turning on Mr Everett again who had followed Croasdaile and stabbing him three times in the abdomen. Both men received serious injuries from which they made satisfactory recoveries.

The Claimants sued the Comojo, Mr Balubaid and Darkstorm. Darkstorm were dismissed from the claim after obtaining Summary Judgment. Judgment in Default was obtained against Balubaid but he had disappeared and it was unlikely that the Judgment would be satisfied. The action proceeded against Comojo alone.

In effect two particulars of breach were pursued – firstly, that Comojo had failed to instruct doormen to search guests. That allegation was rejected by the Judge and there was no Appeal on that issue. The second allegation was that Ms Kotze had been negligent in reporting her concerns about Croasdaile to Mr Rosenblatt rather than reporting directly to one of the door supervisors and that Comojo were vicariously liable for her negligence. The argument was that if she had done that, the supervisor would have come to the bar immediately and prevented the incident getting out of hand.

The Judge followed an Australian case, Chordas v Bryant, concerning the duty of hotel managers to protect a patron from the foreseeable risk of injury arising from the actions of another patron. He concluded that there was no duty of care because at the time when Ms Kotze left the bar to speak to Mr Rosenblatt there was not a sufficiently great risk of injury and she was not therefore under a duty to do anything about Croasdaile at that stage. As to causation, the Judge found (when he was requested to by the parties after Judgment was finished) that if he had found Ms Kotze had been under a duty to alert a door supervisor, liability would have been established, ie that had she done so the incident would probably have been avoided.

The Claimants Appealed.

The decision

The modern test of negligence was the three-fold test laid down by the House of Lords in Caparo Industries v Dickman. The Judge had not gone through the process of applying that test because he had been attracted to the way the Australian Court had put it in Chordas. Applying however the three stage process:-

1. Proximity of the relationship.
The relationship of the management of a night club and its guests was of sufficient proximity to justify the existence of a duty of care. The management was in control of the premises, it could regulate who entered and who was to be removed. The guests expected to be able to relax and enjoy themselves in a safe environment. There was also an economic relationship between guest and owner in that the management of the nightclub was in business and wanted the guest to come and spend his money. Those factors demonstrated sufficient proximity.

2. Foreseeability of injury.
Consumption of alcohol could lead to the loss of control and violence. It had to be foreseeable to any licensed hotelier that there was some risk that one guest might assault another. The assessment of the degree of risk which would dictate what precautions had to be taken would vary. There could not be a rule of thumb to apply to all nightclubs. However, given the risk assessment which Comojo had done themselves, they could not seriously argue that the risk of the assault was so low that it could be ignored.

3. Fair, just and reasonable.
It was fair, just and reasonable to impose a duty of care on the management of a nightclub in respect of injuries caused by a third party, provided that the scope of the duty was appropriately set. It was not possible to define the circumstances in which there would be liability. The circumstances would vary widely. It would be a rare nightclub that did not need some security arrangements which could be activated as and when the need arose. The duty might require for security to be present at all times; it might require, in respect of members only clubs for example, no more than that the staff be trained to look out for any sign of trouble to alert security staff.

On these facts Ms Kotze had not been in breach of duty. She had realised that there was a possibility of a confrontation between Croasdaile and one or more of the members of the group the Claimants were in. She had no reason to think a confrontation was imminent. In going to Mr Rosenblatt in these circumstances and letting him decide what to do was sensible. There was no apparent urgency.

Appeal dismissed.

focus on...

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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