UK: When Is A Worn Carpet The Same As A Thug?

Everett and Harrison v Comojo (2011), Court of Appeal

Can a nightclub owe a duty of care to its guests to protect them from other potentially violent revellers? By an interesting analogy, Lady Justice Smith has said yes.

What does this case tell us about publicly-run social events? Tom Walshaw examines.

The facts

The Met Bar, Old Park Lane, London, is a nightclub only open to registered members and their guests. One evening, a member, Mr Balubaid was present, and witnessed two other guests, Messrs Everett and Harrison, become involved in a brief incident where a waitress, Ms Cotze, was tapped on the bottom. Balubaid subsequently told Ms Cotze that Everett and Harrison would apologise to her before the evening was out.

Some while later, Balubaid signed in a guest, Croasdaile. He had what was described as an enormous physique, was wearing combat trousers and a tight top, and was assertive, bold and aggressive whilst in the club. He did also however share a joke with another guest and consume alcohol calmly.

The waitress was in fact very concerned that Croasdaile would in some way try to extract the promised apology from Everett and Harrison. She was so concerned that she went to see the Bar Manager about it. Whilst doing that, she heard shouting and breaking glass from the bar area.

What had happened was that Everett and Harrison had at that point decided to leave, whereupon Croasdaile had demanded the apology. Everett and Harrison had sworn at Croasdaile, and then Croasdaile stabbed Everett three times in the abdomen, and Harrison in the neck. Fortunately, they survived and have made a satisfactory recovery.

Everett and Harrison brought an action alleging that the nightclub management company, Comojo, owed a duty of care to them, as guests, to protect them from the danger posed by third parties which they alleged it ought reasonably to have foreseen. Specifically, they should have been protected, by all guests being searched on arrival, and further, Ms Cotze should have gone straight to a doorman to have had Croasdaile evicted when she became aware of the risk of violence from the apology issue. The allegations were denied by Comojo, who won at first instance. The claimants appealed.

Appeal

Lady Justice Smith had to decide whether a duty of care was owed by the nightclub to its guests to protect them from the potential danger posed by other, violent, guests. Since this was a novel legal situation, where no English court had previously considered whether a duty of care existed, she applied the three stage legal test, as set out in Caparo Industries 1990 [AC], to find out whether it should exist.

1. Was the relationship between the hotel and the guests sufficiently proximate for a duty to exist?

She held that it was. The average nightclub guest relaxes in an environment provided by the management and expects it to be safe. That guest will be expected to spend money in the establishment, so an economic relationship exists between the guest and the management.

2. Was injury reasonably foreseeable?

Alcohol is consumed in a nightclub, so there is an inevitable risk of loss of control, and violence. There will be less of a risk in a private members club, as the flow and nature of guest can be more controlled than in a public bar. Here, the risk was not so low that it cannot be ignored. Indeed, Comojo had carried out a risk assessment itself and found there to be a risk.

3 Is it fair, just and reasonable to impose a duty?

Lady Justice Smith found that since Comojo had control of the premises, alcohol was consumed and there was a risk of violence, and given the economic relationship, then it was fair, just and reasonable for a duty to be introduced. She considered it highly relevant that as the law stands under the Occupiers' Liability Act 1957, the management owed the common duty of care to guests, and could therefore be liable if a guest tripped over a worn carpet, and yet escape liability for injuries inflicted by a fellow guest who presented a foreseeable danger. She felt that would not be a fair situation, so would impose a duty in these circumstances.

Therefore, the Court of Appeal unanimously found that a duty of care existed in the circumstances. However, liability was not established in this case, because on the facts Comojo had not breached the duty. Ms Cotze had realised the possibility of confrontation between Croasdaile and the claimants, and going to see her supervisor rather than going to a doorman was a reasonable response. Getting the doormen straight in to evict Croasdaile could have provoked violence, rather than prevented it. What Ms Cotze did was therefore reasonable.

What we can learn

• The lessons are clear. What applies to a privately run nightclub has implications for publicly run social events. Arguably, wherever a local authority allows the public to congregate, and particularly if a charge is made for that, then a risk assessment should be made of the risks that the attendees pose to each other. An obvious example is a local authority run sports or social complex with a bar attached where there could be a real risk of injury.
• What of, say, a Council Parking Permit Customer Centre? The risk to staff from annoyed clients is obvious, and often considered, but what of the risk of fractious visitors fighting in the queue? The existence of a duty is less obviously clear, but it would be a foolhardy local authority that did not have access to at least some security staff to protect visitors.

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