A win for the employer and a licensed club - not liable for patron's assault on security guard

In this article,  Anna Hendry considers the District Court’s judgment in Baillie v Jackson [2015] QDC 31.

The Facts

The plaintiff, a security guard with over 14 years experience working as a police officer, was employed by a security contractor, Mr Jackson, to provide security services at the Victoria Point Sharks Sporting Club (“the club”) on a Saturday night in September 2007. Relevantly, the club requested only one security officer despite hosting a wedding function that night.    

Towards the end of the night, two male guests from the wedding reception approached the plaintiff, who was standing at the club’s reception desk. One of the patrons shook the plaintiff’s hand in what seemed to be a friendly exchange but then unexpectedly punched the plaintiff in the face causing fractures to his right zygoma and a significant aggravation to a pre-existing psychiatric condition. The assailant’s friend promptly escorted the assailant outside of the club and the doors were locked, preventing their re-entry.

The assailant was prosecuted and sentenced in relation to the offence and subsequently the security guard (plaintiff) commenced proceedings alleging negligence against his employer and the club.  

The Judgment

The plaintiff’s case was that the club and his employer ought to have arranged a second guard on the night of the incident, which he argued would have provided greater opportunity to detect the assailant’s increasing intoxication.

In considering whether either defendant breached the duty of care owed to the plaintiff, Judge McGill accepted the evidence of other witnesses over that of the plaintiff in relation to a number of issues:

1. The plaintiff alleged that there were approximately 200 people in the club that night (including 130-150 guests attending the reception). The Court accepted the club’s evidence that there were 79 adults at the wedding reception and at most 40 patrons in other areas in the club.
2. The plaintiff led evidence that the assailant was “legless” when he approached him. This was contradicted by the plaintiff’s own earlier police statement, which stated that he observed the patron throughout the night and had no concerns. The bar staff serving at the reception gave evidence that while the claimant was identified as a possible concern for later that evening, at the time he left, his behaviour was unremarkable. The surveillance also indicated the claimant did not appear unduly intoxicated. The Court rejected the plaintiff’s evidence in this regard.
3. The plaintiff led evidence that there would always be a second security officer in the event of a function; however the club’s records indicated that the plaintiff worked on his own on three previous occasions where functions had been booked.

These inconsistencies were relevant to determining the scope of any reasonable measures open to the employer in preventing the injury. While some evidence adduced indicated a second guard was appropriate when the number of patrons was expected to exceed 100 people, having regard to Lusk v Sapwell¹, Judge McGill found that the provision of a second security guard on the night would not have prevented the plaintiff’s injuries as the assailant did not demonstrate any untoward behaviour leading up to the incident. Furthermore, it was unlikely that a second guard would have been able to prevent the assailant from assaulting the plaintiff as the assailant engaged in a friendly gesture with the plaintiff immediately before assaulting him, thus taking the plaintiff and probably the hypothetical second security guard, by surprise.

As the Court found that the assailant did not demonstrate intoxication or aggression leading up to the incident, the claim against the club also failed.

Key Points

1. The measures open to an employer to prevent the risk of injury to their security guard employees, are limited given the obvious risks associated with the job.
2. The distinguishing aspect in this case, was that the assailant was not identified as a concern immediately before the incident and the Court accepted that he could not have been so identified.
3. For employers, design your system of work to take into account the features of the licensed premises in which your employees work, such as the trends in patronage and the likely enforcement of any responsible service of alcohol polices.
4. It is well established that a licensed premises can be found liable for the negligent acts of third parties². Licensed operators should enforce responsible service of alcohol policies and take steps to identify any risks posed by patrons. In assessing the magnitude of any risk, have regard to the usual and expected patronage and the experience and training of staff.

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1. [2011] QCA 59.

2. Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420.