Appeal finds nightclubs owe duty of care to protect guests

Everett & another v Comojo (UK) T/A The Metropolitan & others

(Court of Appeal 18 January 2011)

This Appeal concerned the duty of nightclubs to protect their guests against the actions of other guests. It arose from an incident in 2002 at a well-known Met Bar at the Metropolitan Hotel in Park Lane, London. A waitress was touched inappropriately (or perhaps kicked) by someone among a group of men at the bar. This upset a regular, a wealthy Saudi gentleman, Mr Balumaid, who told the waitress that the men would apologise to her.

Later, Mr Balumaid left the bar and returned with another man whose appearance the waitress thought was scary. She thought Mr Balumaid would send this man over to the group of men to extract an apology, and went to tell her manager that she feared violence. However, while she was away, two men from the group were beckoned over to Mr Balumaids table, following which they were violently assaulted and knifed by his associate.

The associate was convicted of grievous bodily harm, but Mr Balumaid vanished without trace, so the two victims of the assault brought proceedings against the hotels owners. They argued the waitress had been negligent in going to the manager, rather than immediately fetching the security from the door of the nightclub.

The judge accepted that if she had done this, the incident would probably not have occurred, and found, following the Australian Federal Court decision of Chordas v Bryant (1988), that nightclubs do owe a duty to prevent one guest from injuring another, where the risk is reasonably foreseeable. However, the judge did not consider that the waitress had acted unreasonably in seeking the manager, because violence did not seem imminent at that time.

The Court of Appeal accepted that the club owed a duty to its guests, but emphasised that the extent of the duty must be fair, just and reasonable in the circumstances. In this case, because there was no obvious risk of violence, the club was not in breach. Furthermore, it was found to be acceptable for the junior member of staff to notify the manager, rather than reporting the risk directly to the security staff.

This is important guidance for nightclubs, who will clearly wish to maintain a good reputation as well as good order. Most nightclubs will need security arrangements which can be activated as and when the need arises. And where there is a history of weapons or violence at a nightclub, searches on entry and security within a nightclub may be necessary. Such arrangements may be unnecessary in respectable members-only nightclubs. However, it is clear that all nightclubs must train its staff in how to look out for any sign of trouble and to alert security staff. The argument that a defendant will not be liable for the criminal act of a third party cannot be relied on to escape liability for injury to guests in these circumstances.