Spedding v Nobles; Spedding v McNALLY

[2007] NSWCA 29

NSW Court of Appeal

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Interrogate

Catchwords

1. Tort Law
2. › Negligence
3. › Duty of care
4. › Occupier's liability
5. › Licensed premises
6. › Duty to protect patrons from criminal assault by third parties
7. › Whether licensee owed duty of care to protect patrons from attack by other patrons
8. › Element of control
9. › Liquor Act 1982 (NSW), ss 2A, 103(1), 103(3A), 125
1. Tort Law
2. › Negligence
3. › Breach of duty
4. › Reasonable foreseeability
5. › Criminal assault by third party
6. › Whether risk of violent attack was reasonably foreseeable
7. › Objective assessment based on knowledge of licensee's employee
1. Evidence
2. › Reliability of witness evidence
3. › Memory reconstruction
4. › Whether trial judge erred in drawing inference from circumstantial evidence
5. › Approach to evidence of witness with head injury and post-traumatic amnesia
1. Appeal
2. › Standard of appellate review
3. › Findings of fact
4. › Whether inferences drawn by trial judge were open on the evidence

Quick Take

A hotel licensee owes a duty of care to patrons to protect them from risk of attack by other patrons, based on the element of control conferred by the Liquor Act 1982 (NSW), not on the existence of a 'special relationship'. The Drakulic strictures about intermediate courts creating new categories of liability do not preclude application of this established head of liability. The duty is informed by the statutory power and obligation to control patron conduct under ss 2A, 103 and 125 of the Liquor Act.