Negligence — Duty of care – Occupiers’ liability – Appellants suffering attack and injury in nightclub – Whether respondent club owner under duty of care to appellants for actions of third party — Whether respondent acting in breach of duty — Appeal dismissed
The appellants were guests at a nightclub owned by the respondent. They were injured in a knife attack perpetrated by another guest (C), who was convicted of wounding with intent to cause grievous bodily harm and sentenced to life imprisonment. He was subsequently released but was not sued. The appellants instead sued the respondent company, alleging that it had failed to take appropriate steps to protect its guests.
The county court dismissed their claims for damages for personal injury and the appellants appealed. The appeal raised issues relating to the scope of the duty of the nightclub managers in respect of the actions of third parties.
Held: The appeal was dismissed.
The establishment of a duty of care required the satisfaction of the threefold test of proximity, foreseeability and whether it was fair, just and reasonable to impose the duty as expounded in Caparo Industries plc v Dickman [1990] 2 AC 605. Since the judge in the instant case had applied that test, the appeal court would do so, bearing in mind that its three elements were not separate considerations and to some extent overlapped.
The relationship between the management of a nightclub 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, who was refused entry and who was to be removed after entry. Guests expected relaxation and enjoyment and for that purpose relied on the competence and prudence of the management. They were entitled to feel safe from violence. Further, the management was in business and wanted guests to spend their money; there was an economic relationship between the two parties and those factors demonstrated sufficient proximity. It was necessary for the licensed hotelier to be able to foresee the risk that one guest might assault another. That risk might be low in members-only establishments, but much higher in a nightclub open to the public.
I 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. In that context, it was relevant that the relationship between the parties carried with it an established duty, under the Occupiers’ Liability Act 1957, regarding the condition of the premises. That was the common duty of care and it required the occupier to take such care, as in all the circumstances was reasonable, to ensure that the visitor would be reasonably safe in using the premises for the purposes for which he was invited or permitted to be there. Accordingly, there was a duty on the management of a nightclub in respect of the actions of third parties on the premises but the standard of care imposed or the scope of the duty had to be fair, just and reasonable.
The court was not prepared to say that, as between the managers of a nightclub and their guests, there should be a higher degree of foreseeability than was required under the common duty of care in the 1957 Act. The degree of proximity (including the economic relationship) between the two was so close that no special rule of foreseeability was required in the interests of fairness, justice and reasonableness. The common duty of care was a flexible concept, adaptable to the wide range of circumstances to which it had to be applied, and it was not possible to define the circumstances where liability applied since they would vary widely.
In the instant case, the judge was right to conclude that the respondent had not been in breach of duty. The judge’s assessment of the reasonableness of its actions was unassailable and there had been no reason to believe that a confrontation was imminent.
Simon Butler and Johnathan Payne (instructed by Stone Rowe Brewer LLP) appeared for the appellants; Lord Faulks QC and Quintin Tudor-Evans (instructed by Barlow Lyde & Gilbert LLP) appeared for the respondent.
Eileen O’Grady, barrister
