CLUB FOUND LIABLE FOR VIOLENT ATTACK BY PATRON

On 24 August 2007, the NSW Supreme Court handed down its decision in the matter of Karimi v Rooty Hill RSL Club Limited and Ors [2007] NSW SC 938.

The matter relates to an attack on Mr Karimi by a patron of Rooty Hill RSL Club Limited.

The abbreviated facts of the case are that Mr Karimi was with a group of friends making use of the facilities provided by the club. Mr Karimi and his friends had not consumed any alcohol. During the course of the evening Mr Karimi was approached by a Mr Smith. The evidence indicated that Mr Smith had been drinking at the club for some time and was probably drunk.

At about 11.00pm, Mr Karimi and his friends were watching activity at a roulette table when Mr Smith approached. Mr Smith was behaving in a way which was thought by the group to be unusual in that he was flexing his muscles and intervening in their conversation. The group sought to deal with Mr Smith’s conduct by joking with him. However, Smith said that he wanted to fight Mr Karimi and a scuffle broke out. Mr Karimi’s friends tried to intervene but security guards arrived and the scuffle ended.

The club had a policy in place whereby all involved in such an incident were required to leave the club. They were entitled to return to the club the following day.

Mr Karimi and his group of friends left via a western entrance of the club and Mr Smith via the eastern entrance of the club.

It was determined on the evidence that Mr Smith and his girlfriend then drove to the western side of the club where Mr Smith got out of the car, ran towards Mr Karimi and punched him, causing him to fall to the ground. Smith was ultimately apprehended and detained by security guards.

Mr Karimi suffered a fractured skull and possible brain damage and his condition deteriorated considerably. Mr Karimi spent two months in a coma and suffered significant residual brain damage.

Mr Karimi through his tutor brought action against the club in negligence.

His Honour found that the club’s policy did not seek to assess whether one or the other of the disputants was the aggressor, but to require both parties to be evicted represented a system failure relevant to the exercise of care for patrons. In this case, there was a failure to heed information identifying an aggressor which was in fact in possession of both the employees of the club and the security company who were involved in requiring the plaintiff to leave the club.

His Honour commented that reasonable care for the protection of a patron by the club and security required that the vehicle in which Mr Smith was known to be riding be restrained from re-entering into the premises. If restraint failed, it was evident in the circumstances that Mr Karimi was a person who should be provided with protection.

An expert suggested that Mr Karimi should have been kept inside the club for half an hour after the departure of Mr Smith. His Honour stated “that whilst I accept the defendant’s contention that there is nothing shown to support this specific assessment of half an hour, it is obvious that the departure of both evictees should be significantly staggered by time delay. This is not what happened. If there had been reasonably separated staggered departures of Smith and Karimi, the risk which fell due would probably have been avoided.”

In commenting about the club’s policy that where an incident occurs both sides would be ejected at least until possible readmission on the following day, it was noted the policy does not require or even suggest any investigation as to which party may be at fault. Whilst it is readily perceptible that in many instances enquiry may be met simply with contradiction from the parties, it is a glaring omission not to make any enquiry at all. Such an admission prevents those exercising the duty of care from learning, if it be the case, that one participant has been an aggressor. This in turn would put them on notice that that aggressor should have particular attention paid to him or her. In this case, there was such an aggressor, Smith, and his movements should have been monitored with that in mind and the plaintiff’s person guarded against further attack, at least by escort until he was in comparative safety of his car and away from the presence of Smith. As I have earlier noted, despite the defective policy, in this instance information was possessed by the club and the security company that Mr Karimi was the innocent victim of Smith’s aggression.
 
His Honour also stated that if monitoring and patrol of the western car park had failed to prevent Smith’s re-entry, it is no answer to Mr Karimi’s claim to observe that Smith was described to be coming from “no where” and moving rapidly. The plaintiff was rendered vulnerable by being alone. The presence of a security guard not only might have operated to inhibit Smith from further attack but that guard, if he was escorting the plaintiff, could intervene to defend against Smith’s attack. In that way the injuries which the plaintiff suffered should have been avoided.

In summary, His Honour found that the club was in breach of its duty of care towards Mr Karimi in failing to guard against the foreseeable risk of his being attacked by Smith in pursuing a policy of eviction of both disputing sides without any enquiry that might identify an aggressor with the consequent need for particular monitoring of that aggressor; in failing to maintain a system of ensuring that an evicted disputant did not re-enter the premises; in failing to adequately monitor and stagger the departure of disputants and in failing to escort disputants to the points of departure.
 
His Honour found that the security company was in breach of its duty in its capacity as provider of security for patrons including Mr Karimi in failing to comply with a reasonable procedure ensuring that Smith did not re-enter the premises; in failing to monitor the vehicle in which he was known to be travelling; in failing to restrain that vehicle from re-entry into the western car park; in failing to ensure that Smith was absent when the plaintiff was proceeding from the foyer to his vehicles; and failing to escort him to his vehicle and failing to take precaution against the possibility that Smith would return and renew attack on the plaintiff by advising him to remain within their area of protection in the foyer until a sufficient time had elapsed to make it reasonable to conclude that Smith had left the area.

In regard to both the club and the security company they were, possessed of information that should have warned them that Smith harboured aggressive feelings towards Mr Karimi and that these had manifested themselves in an unprovoked attack near the roulette table. In that circumstance, there was a demonstrable requirement for precautions to be taken for the safety of the plaintiff, but a routine ejectment and nothing further was implemented.

In assessing the respective contributions to the damage suffered by Mr Karimi, His Honour took into account what he considered to be the overarching policy failure which obstructed the derivation of information identifying an aggressor and, if both disputants are to be evicted, seeing to a practical system to stagger the departures by an adequate interval. The security company failed to monitor the re-entry of Smith, to restrain that re-entry and to see that the plaintiff’s safe arrival at least as far as his vehicle by suitable escort.

On the cross-claim by the club against the security company His Honour found in favour of the club for contribution by the security company to the extent of one-half of the damages payable by the club to the plaintiff.

Our view

It is our view that this case sends a clear directive to all registered clubs.

The case illustrates that clubs should have a policy that ensures that reasonable steps are taken to:

• determine which of the parties is the aggressor;
• monitor the situation and individuals after the incident;
• stagger ejection times of the parties;
• ensure that the parties are escorted from the premises to their points of departure; and
• ensure the parties do not re-enter the premises.

Further, the security company was ordered to contribute half of the damages payable by the club. In effect, the security company was ordered to pay three quarters of the damages payable and the club one quarter.

However, certain security agreements that we have advised upon have contained indemnities against all costs relating to such actions. Such an agreement, if not amended, would require the club to pay the total amount of damages awarded.

What you can do

In light of the court’s decision it would be pertinent to review your club’s:

• Security agreements;
• Workplace security, workplace relations and incident policies and procedures;
• Responsible Service of Alcohol policy; and
• Staff training procedures.

If necessary, you should seek to amend agreements to limit the effect of any indemnity given to under the security services agreement.

Eastern Commercial Lawyers are experienced in advising and drafting commercial agreements (including security agreements), policies and procedures and other OH&S procedures for clubs. Please feel free to discuss the points raised in this matter or seek our view in relation to your club’s policies and/or agreements or contracts with security companies, by contacting either Tony Johnston or Michael Guihot.

To read the full judgment, click here.