Monday, 31 January 2011

Everett & ors v Comojo (UK) Ltd t/a The Metropolitan & ors [2011] EWCA Civ 13: painful lesson

Does a nightclub have to protect its visitors?  Yes and no.  There you go, the perfect legal answer.

This is one of those cases where the Claimants come off particularly badly.  Not just because they lost, but because the casual reader might think that they brought their brutal treatment on themselves.  Simple enough story, they went to the Met Bar in Old Park Lane, a members- and guests-only bar.  The Claimants were the guests of a member, and took a particular liberty; one of them slapped a waitress on the jaxie.  Another member, Mr Balubaid, noticed this and was not impressed.  Mr Balubaid was a big spender and not known for violence.  But he did have a bodyguard. Interesting.

The waitress brushed off the incident, but Mr Balubaid told her that she would get an apology before the night was through.  A bit later Mr Balubaid asked the waitress to allow his driver to be placed on the guest list.  So she did, he turned up, had a tequila (perhaps he was not driving last night), shared a joke at the bar.  All well and good?

Not quite.  This “driver” made Mr Universe look like Jarvis Cocker.  The waitress thought that something may happen and went off to see the manager to warn him.  Too late.  Just as she left his office, she heard breaking glass.

What had happened was that the Claimants had decided to leave.  Mr Balubaid suggested that, before they do so, they wait to apologize to the waitress.  Mr Everett, the lead Claimant, responded in a way which suggested that Mr Balubaid should be on the point of micturating.  This was definitely the wrong answer.  The driver drove his fist into Mr Everett’s face.  And then chased the now-fleeing Claimants with a knife, caught them, and stabbed them several times.  Two of them suffered serious injuries, but recovered; the driver was sent down, initially for life, but is now out.

It was pretty obvious whom the Claimants should sue for their injuries.  The driver.  Only he had no money.  They could sue the driver's employer, Mr Balubaid.  Only he had gone AWOL and nobody knew where he was.  So they had to be a bit more creative.  They sued the security firm working the doors for letting a knife-wielding maniac in; struck out quickly, there was no likelihood of success, the knife was well hidden and there was no suggestion of negligence.  So they were stuck with suing the bar.  For negligently failing to keep its visitors reasonably safe.

To succeed in a claim, the Claimants had to show the Holy Trinity of tort law was satisfied. Duty, breach, causation.  Start with duty.  That in turn is the threefold test from Caparo v Dickman; foreseeability, proximity and fairness.  Could they nail these?  Foreseeability was easy – in a nightclub, people drink, when people drink, they get violent.  One down.  Proximity?  They couldn’t get more proximate than be in the very bar itself.  Two down.  Fair?  Yes – within limits.  The Court looked at the Occupier’s Liability Act 1957, which was about the state of the bar itself, and thought it would have been odd that a visitor who fell over a bit of carpet would be able to claim, but a visitor who was marmelized by a sociopath let in by the occupier would not.

So, duty was OK.  Problem is, the duty was not set very high.  Letting in a known sociopath was one thing; Mr Balubaid had no record of violence.  How far do you go in keeping ostensibly "normal" people out?  Had the bar reached the appropriate standard of a normal bar?  Which was to do what was reasonable in the circumstances?  Could the people there keep an eye on every visitor? 

Schools are not liable for playground accidents with appropriate supervision, even if this means a couple of teachers looking after a hundred children, as accidents will happen.  People cannot be kept 100% safe in all circumstances.  And in this case the Court held the bar had done enough.  The waitress had done the responsible thing, she had informed the manager, and there hadn’t been time to defuse the situation.  The Claimants suggested she shouldn't have wasted time with the boss and should have gone to the security guys.  The Court disagreed.  Why should she have informed security and have a valuable customer thrown out apropos of nothing?  The bar staff could not take pre-emptive action either.   The appropriate thing was to go to the manager, who would have experience of this sort of thing.  It wasn't the bar's fault that the situation escalated so quickly.

Therefore, there is a duty, but not too strong a duty.  A responsible bar should always be able to meet that duty with some ease.  Certainly the Met had – to the disappointment of the Claimants.  They had a sure-fire can’t-lose claim, certainly; but against the wrong people…

No comments:

Post a Comment