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Three-point test for duty of care responsibility

Leisure and hospitality businesses want to ensure guests and customers enjoy their time and feel as safe as possible, but to what extent does a nightclub owner have a duty to protect guests from the actions of a third party?

Well this was the question dealt with in a recent interesting case Everett and another v Comojo (UK) Ltd involving a nightclub owner before the Court of Appeal.

It is usual for a nightclub to control entry to the premises and arrange for those whose behaviour has become objectionable to be ejected.  It is therefore reasonable to accept that a nightclub owner owes a duty of care to those who attend the club, who have the right to expect that they will be safe and free from violence.

However, the duty of care owed by the nightclub owner to its customers is not unrestricted.  It was alleged that the duty was breached when the owners of the members-only club failed to protect guests who were stabbed by the driver of another guest.  The Court of Appeal disagreed.  The court accepted that a duty of care existed, but, in the case in point, found that no breach of that duty had arisen.

In reaching its decision, the court applied the standard three-point test. Firstly, in order for the club owner to be found liable, there would have to be a sufficiently close relationship between them and the guest to justify the existence of the duty of care.  This test was satisfied.

Secondly, the injury had to be foreseeable.  It was accepted that in an environment where alcohol was served, the risk of violence was present, to the extent that it could not safely be ignored.

Lastly, the standard of care imposed must be fair, just and reasonable.  In the particular circumstances, this was found not to be the case.

The Court made it clear, however, that in other circumstances – for example, if the premises had a history of violent incidents – the duty of care may have been breached.

For more information on the legal responsibilities of business owners, contact Philip Grylls, partner and head of the litigation team on email: p.grylls@gullands.com