Lawyers Briefing Notes

Tue, 22 Feb 2011

Liability for the Criminal Actions of Third Parties

In the recent case of Everett & Anor v Comojo Ltd T/A The Metropolitan & Ors [2011] EWCA Civ 13 the Court of Appeal had to consider whether a private company could be liable for the criminal actions of a third party.

The appellants had been guests at a nightclub ("The Met Bar"), owned by Comojo, and were injured in a knife attack by another guest. Access to the nightclub was restricted to members, their guests and residents of the hotel.

On the evening in question a waitress, Ms Kotze, was kicked or tapped on the bottom by one of the group in which the appellants were standing, she suspected it was one of them. The incident was witnessed by another member, Mr Balubaid, who seemed to be aggrieved by the incident and told Ms Kotze that those responsible would apologise before the end of the night. Mr Balubaid was a regular guest at the bar, and was known to spend freely; he was a valued customer. Ms Kotze told the hostess about the incident and Mr Balubaid's reaction to it. Later in the evening Mr Balubaid asked Ms Kotze to put the name of Cecil Croasdaile, his driver, on the guestlist, which she duly did after consulting the hostess. Mr Croasdaile arrived, sat with Mr Balubaid.

Ms Kotze regarded Mr Croasdaile's appearance as "scary" and it crossed her mind to hope that Mr Balubaid was not going to send him over to extract an apology. Ms Kotze was sufficiently concerned about what might happen that she went to speak to the bar manager, who was in his office. As Ms Kotze returned to the bar she heard the sounds of breaking glass and disruption, Mr Balubaid had asked the appellants for an apology and a scuffle had broken out, resulting in Mr Croasdaile stabbing both men and causing serious injuries. Mr Croasdaile was convicted of wounding with intent to cause grievous bodily harm and was sentenced to life.

The appellants brought claims against Comojo.The issue was whether it owed any duty of care towards the appellants in respect of the actions of Mr Croasdaile.

The trial judge found in favour of Comojo. Although the judge felt that in some circumstances a duty of care could be owed by the bar/club owners, here, he decided that, on the facts of the case, there had been no duty of care because at the time Ms Kotze left the bar to speak to the bar manager there was not a sufficiently great risk of injury and she was not under a duty to do anything about Mr Croasdaile at that stage. It was not known that Mr Croasdaile had a weapon and there was no history of Mr Balubaid or his associates being violent. Whilst the trial judge considered that it would have been better for Ms Kotze to see a door supervisor about her concerns than the bar manager, she was not under a duty to do so.

The decision was appealed.

Lady Justice Smith, giving the majority judgment, determined that the start point for establishing the existence of duty of care as well as its scope or extent was the threefold test expounded in Caparo Industries plc v Dickman [1990] 2 AC 605. LJ Smith described the threefold test as providing a process by which judges could determine the existence of a duty and its scope but reminded herself that the three elements of the test were not completely separate considerations and that there could be overlap. In respect of the Caparo “test” she said:

Proximity of relationship. Management was in control of the premises and could regulate who entered, the guests relied on the competence and prudence of management and there was also an economic relationship between the bar and guests. There was, therefore, sufficient proximity of relationship to justify the existence of a duty.

Foreseeability of injury. It was a well-known fact that the consumption of alcohol can lead to the loss of control and violence, Comojo's own risk assessment identified this precise risk. The risk may be low in respectable members-only establishments and much higher in a nightclub open to the public, assessment of the degree of risk will dictate what precautions have to be taken.

Fair, just and reasonable. It was fair, just and reasonable to impose a duty, providing that scope was appropriately set. It was relevant that there was already a duty imposed by the Occupier's Liability Act 1957 and LJ Smith considered that it would be surprising if management could be liable to a guest who tripped over a worn carpet and yet escape liability inflicted by a fellow guest who was a foreseeable danger.

As to the scope of the duty LJ Smith explained that it was not possible to define the circumstances in which there would be liability but thought that it would be a rare night club that did not need some security arrangements, although what was needed would vary.

In a nightclub where experience showed that entrants quite often try to bring in offensive weapons, it may be necessary to arrange searching on entry. In a nightclub where outbreaks of violence are not uncommon, liability might well attach if a guest was injured and no-one was on hand to control the outbreak. It may be necessary for the management of some establishments to arrange for security personnel to be present at all times within areas where people congregate. On the other hand, in a respectable members-only club, where violence is virtually unheard of, no such arrangements would be necessary. The duty on management may be no higher than that staff be trained to look out for any sign of trouble and to alert security staff.

In the present case LJ Smith considered the trial judge to have been correct in deciding that Ms Kotze had not been in breach of duty. There was no reason to think that the confrontation was imminent and there was no previous history of Mr Balubaid causing trouble. A waitress in Ms Kotze's position would not have wished, on her own initiative, to take a step which might have caused offence to Mr Balubaid and embarrassment to the club by asking a door supervisor to intervene. Telling the bar manager about the situation and letting him decide what to do was sensible.

The appeal was therefore dismissed.

All establishment owners would be well advised, in light of the decision, to carry out risk assessments looking at the possibility of violent guests with a view to amending their security arrangements where the degree of risk of danger from guests requires it.