The Publican, the Patron, the
Drinks and the Punch
It sounds like a movie title, but in fact it is a drama
played out in pubs, clubs, restaurants and bars when one
remark triggers a punch.
The remark can be innocuous - "You only hit disabled people
or women" but the punch received in return can result in
Given that this incident happens on licensed premises, the
publican has a duty of care to prevent injury to patrons,
which they must fulfil or otherwise be responsible for
It’s not easy for a Publican to know how best to fulfil
their duty of care to prevent injury to a Patron from
a Punch thrown after a few Drinks.
Three decisions by the Courts of Appeal in NSW and
Queensland provide a useful guide to what a publican needs
to do to safeguard their patrons from assault and themselves
from legal responsibility.
All three Courts of Appeal applied the leading decision on
the publican’s duty of care, a unanimous decision by the
High Court of Australia in Adeels Palace Pty Ltd v
Moubarak  HCA 48.
The Adeels Palace decision
The incident occurred at a large and crowded New Years Eve
function held at the Adeels Palace reception centre and
restaurant in Punchbowl. An altercation took place on the
dance floor at about 2:30 am, which led to a mêlée with
punches, chairs, plates and bottles being thrown. A patron
injured in the mêlée left the premises and returned with a
gun, shot and seriously wounded the patron who had injured
him in the altercation and one other.
The High Court formulated the liquor licensee’s duty of care
in terms of the Liquor Act as:
a duty to take reasonable care to prevent injury to
patrons from the violent, quarrelsome or disorderly conduct
of other persons ... particularly with regard to allowing
persons to enter or remain on those premises.
The High Court dismissed the claims for compensation because
it decided that the cause of the injuries was criminal
wrongdoing, not a breach of the duty of care. Even if Adeels
Palace had provided more security in the restaurant, it was
not shown that this would have prevented the
injuries – only that it might have done so.
The Courts of Appeal all adopted the Adeels Palace
formulation of the liquor licensee’s duty of care and
decided that there was no breach of that duty of care in
terms of the Civil Liability Act (in NSW sections 5B &
5D). In all cases, a punch was thrown in response to a
remark by the victim.
The decision of Tilden v Gregg  NSWCA 164
The incident occurred at the Ettalong Memorial Bowling Club
on a quiet Sunday night. Tilden was drinking with a friend
seated at a table outside in the ‘old smoking area’. After
20 minutes of verbal abuse and niggling by Gregg, who was
seated nearby, Gregg came over to Tilden who retorted ‘You
only hit disabled people or women’. Gregg then ‘wallop’
punched Tilden in the face. Tilden was injured as he fell
backwards and his head hit a brick wall.
The NSW Court of Appeal decided that the Bowling Club had
not breached its duty of care because: (1) Gregg had no
history of violent behaviour which suggested that a
‘stronger eye’ ought be kept on him; (2) the half hour
frequency of the walk-through inspections by the duty
manager was sufficient supervision; and (3) the installation
of a CCTV camera would not have deterred the behaviour, and
even if it were installed and monitored, it would not have
alerted the staff to a problem because the assault came
Finally, there was no causation – it was not shown that ‘but
for’ more frequent walk-throughs or the presence of a CCTV
camera, the assault would have been prevented.
The decision of QBE v Orcher; Bowlciff v Orcher 
The incident occurred on the street corner opposite the
Bridge Hotel in Rozelle at 4:50 am on a Sunday morning, as
patrons were leaving the hotel after it closed. See location
photo. Relying upon images from CCTV cameras, the Court saw
that the victim was felled by a ‘hook punch’ thrown by a
casual employee who was ‘arguing about a girl’ with the
The NSW Court of Appeal decided that the neither the hotel
nor the security company engaged by the hotel had breached
their duty of care to prevent injury. Although the duty of
care extended outside the licensed premises, it was not
reasonable to suggest that the security guard should have
crossed the street to prevent the assault because there was
nothing to suggest an assault might take place, the street
had traffic and they were not disturbing the neighbourhood.
The decision of Packer v Tall Ship Sailing Cruises
Australia Pty Ltd  QCA 108
The incident occurred on board a licensed pleasure cruise
ship hired for an all day staff Christmas party. Lunch and
alcohol were served at a venue on South Stradbroke Island.
After boarding for the return leg, the victim approached a
‘loud and boisterous’ group in the ship’s bar and asked them
to ‘keep their language down’. Without warning, the victim
was hit in the face with a ‘coward’s punch’, thrown by a
member of the group in the bar, and suffered serious
The Queensland Court of Appeal decided that the cruise
operator had not breached its duty of care. The cruise
operator had exercised reasonable care by stationing a crew
member at the top of the stairs near the bar; and the
group’s behaviour was not ‘quarrelsome or disorderly’ so as
to warrant removal from the ship. There was no ‘inkling that
the situation was either likely to or might produce
What does a publican need to do to fulfil their duty of
Whether the injury is sustained inside a licensed
restaurant, on an outside patio in a bowling club, across
the street from a hotel or on a pleasure boat, the case law
shows that courts will decide that publicans have fulfilled
their duty of care to prevent injury to patrons if they take
- by having security staff at the door and elsewhere
in the premises,
- by conducting regular walk throughs,
- by having CCTV cameras,
and by immediately dealing with any signs of violent,
quarrelsome or disorderly conduct by removing the patron
from the premises (and barring re-entry).
This duty of care is a general responsibility to prevent
injury. Publicans have responsibilities to fulfil which are
more specific, such as the licence conditions, RSA
(Responsible Service of Alcohol), and specific
responsibilities under the Liquor Act.
The Bridge Hotel, on the corner of Victoria Road (left to
right) and Wellington Street (centre frame) Rozelle (in
inner city Sydney). The incident occurred on the left side
of Wellington Street (where the spiky plants are).