Tim Petts looks at how far Everett v Comojo (UK) Ltd [2011] can take us
The basic facts of this personal injury claim are sadly not uncommon, and those with experience in criminal practice (or who read local newspapers) will be all too aware of the possibility of nightclub arguments turning nasty. Robert and Carl go to a London hotel’s nightclub as guests of a member, a dispute breaks out about the group’s behaviour towards a waitress and Cecil, a guest of another member, stabs them with a concealed weapon. He had not been searched on entry. The waitress in question had thought that something might happen between the two groups but had not alerted the doormen, although she was in the middle of discussing the matter with the bar manager. Should the nightclub’s management be held liable for these injuries and, if so, upon what legal basis?
The claim failed at trial and on appeal, showing once again the difficulties in establishing liability in negligence for the criminal actions of third parties. However, the case establishes a general duty on nightclubs to protect guests from reasonably foreseeable harm cause by other guests. Even though the court of Appeal emphasised that the standard to be expected of nightclubs will vary according to the circumstances, and that the court must only expect steps to be taken that are ‘fair, just and reasonable’, this is still a significant development for Claimant’s and Defendant’s alike: not just for nightclub violence, but more generally.
Facts
The violence occurred not in some dodgy nightclub prone to outbreaks of violence, but in the Met Bar in London, which is open to members and their guests, and to guests at the hotel. It had no history of violent incidents. The situation here developed after a waitress called Tania was touched or kicked on the bottom by someone in the group that included Robert and Carl. Tania did not want to complain about this, but one of the club’s regular and valued customers, Sami, was upset on her behalf and said to her that those responsible would apologise to her before the end of the night. Shortly afterwards, Sami signed in as a guest his ‘driver’, Cecil, who was described as having a bodybuilder physique. Tania was worried that Cecil might be sent over to ‘extract an apology’ from the others, and she was in the middle of raising the matter with the bar manager when the assaults occurred. Robert and Carl were getting their coats when Sami forthcoming, Cecil stabbed one of them, then chased the other downstairs before stabbing him. Less than 15 minutes elapsed between Cecil arriving and the violence starting.
By the conclusion of the evidence, the only allegations of negligence left were:
The manager ought to have instructed the doormen to search guests (an allegation rejected by the judge and not appealed); and
Tania ought to have reported her concerns to the doormen not the bar manager, so that they would have been on hand and either prevented or controlled any outbreak of violence.
The judge, and the Court of Appeal, rejected this argument as we. However, it is the discussion of whether the management owed the men any duty of care that makes the decision interesting.
The company providing the doormen was sued but obtained summary judgement in its favour at an early stage; default judgement was obtained against Sami but he could not be found; Cecil was sentenced to life imprisonment for the assault, but had been released by the time of the Court of Appeal decision eight years later and was presumably not worth suing.
Duty of care or not?
The trial judge had accepted the principle of an Australian decision, Chordas v Bryant [1988], where the Federal Court had accepted that a hotel manager had a duty to protect patrons from foreseeable risks of injury arising from actions of another patron. However, he said that no duty arose on the facts: Tania had no duty to do anything about Cecil because the risk of injury was not sufficiently great; she did not know that he had a concealed weapon and there was no history of violence from Sami or his guests, or indeed at the nightclub generally.
The nightclub sought to argue that the judge was wrong to accept Chordas, but at the appeal hearing recognised the difficulty of arguing that there was no duty at all on nightclub management in respect of third parties’ actions. Analysing the situation with the threefold test of Caparo Industries plc v Dickman [1990] (reasonable foreseeability, proximity, and ‘fair, just and reasonable’) the Court of Appeal considered that all three elements of the test were met and a duty was owed. Alcohol could lead to violence, as the nightclub’s risk assessment noted, and so it was reasonably foreseeable that one guest might assault another. The risk could not be ignored even in a respectable private club such as this. Proximity was satisfied because the nightclub controlled entry and removal and because there was an economic relationship between the nightclub and a paying guest (who is entitled to expect that he will not be unsafe). ‘Fair, just and reasonable’ was met for these reasons and by analogy with the Occupier’s Liability Act 1957; it would be odd, thought the Court of Appeal, if a nightclub was liable for injury caused by a worn carpet but could never be liable for injury caused by a fellow guest known to be dangerous.
However, it stresses that the standard of the duty imposed must also be ‘fair, just and reasonable’. It would depend on the circumstances, for example, was it a nightclub to which offensive weapons were frequently brought? If so, the duty would be likely to include searching on entry. Was it one where violence was common? In such cases, thought the Court of Appeal, liability might be found where violence broke out with nobody on hand to stop it. Sometimes, security personnel would be needed not only at the door but also inside to avoid a breach of duty. Where there was no history of violence, such as at a respectable members-only club, such steps would not normally be necessary, though.
These comments are unlikely to have been much consolation to the nightclub, who were arguing that there needed to be a high degree of foreseeability of injury before liability would attach. This argument was rejected on the basis that given the closeness of relationship between guest and management, no higher degree of foreseeability was required than under the Occupier’s Liability Act.
On the facts of the case, although the Court of Appeal disagreed with the judge and said that a duty was owed, the judge’s conclusion that Tania’s decision to speak to the manager not the doormen was not unreasonable was upheld. No confrontation was imminent; Sami was a valued customer and the intervention of doormen might have caused embarrassment, so discussing the matter with the manager was sensible.
Where next?
The decision takes a major step towards including liability for the actions of third parties as a standard part of the various duties imposed upon an occupier of premises. The foreseeablilty test for the two situations is equated, and arguments for a higher threshold of foreseeability specifically rejected. As well as agreeing that the principle of Chordas applied here as well as in Australia, the Court of Appeal noted that the law in Canada imposes a statutory duty on occupiers in relation to the conduct of third parties in the same way that it imposes a duty in relation to the condition of the premises or activities on the premises. The standard to be expected of occupiers after Everatt will vary, not least because it appears by reference to whether there was a financial relationship between visitor and occupier, which the Court of Appeal clearly took as an important factor.
Factors such as a past history of violence generally at the venue, involvement of a known troublemaker and consumption of alcohol will increase the chances of a claim succeeding.
The implications of Everatt for operators, only of nightclubs but of any other business where paying guests are admitted, are clear. The potential for a negligence claim following non-accidental injury inflicted by a fellow guest has been established. Managers of pubs and clubs, in particular, need to be reviewing their risk assessments and documentation to see whether their practices are sufficient and can be proved to be enforced. Claimant solicitors must not now automatically assume that it will not be possible to establish that the venue management are liable for injuries caused by third parties, since in the wake of Everatt such claims are only going to increase.
