Carlyon v Town & Country Pubs No. 2 Pty Ltd T/A Queens Hotel Gladstone [2015] QSC 13

The decision turned on the acceptance by her Honour Ann Lyons J of the evidence of the investigating police officer’s recollection of the CCTV footage about the eviction from the pub, which the plaintiff sustained his injuries from.

However, there was a preliminary argument as to the incoherency of law by reference to Liquor Act 1992 (Qld), which is of interest:

The incoherency argument

[57] Before I can turn to a consideration of those issues, the defendant has raised a preliminary legal argument which I need to determine at the outset. Counsel for the defendant argued in closing submissions that the defendant could not owe a duty of care to the plaintiff because any such duty would be incoherent with the defendant’s rights and responsibilities which are outlined in the Liquor Act 1992 (Qld) (“Liquor Act”). In particular it was argued that a duty of care to the plaintiff would be inconsistent with the defendant’s right pursuant to s 165(3) of the Liquor Act for authorised officers to use necessary and reasonable force to remove a person from the premises if the requirements in s 165(1) and (2) are met.

[58] The relevant sections are in the following terms:

165 Removal of persons from premises

(1) An authorised person for premises to which a licence or permit relates may require a person to leave the premises if—

(a) the person is unduly intoxicated; or

(b) the person is disorderly; or

(c) the person is creating a disturbance; or

(d) the person is a minor, other than an exempt minor; or

(e) the person has entered the premises despite being refused entry under section 165A; or

(f) the person refuses to state particulars, or to produce evidence, as to age when required to do so under section 167.

(2) A person must immediately leave premises when required to do so under subsection (1).

(3) If a person fails to leave when required under subsection (1), the authorised person may use necessary and reasonable force to remove the person.”

[59] In support of this proposition, the defendant relied on the decision of the High Court in Sullivan v Moody[15] in which the High Court found that the imposition of a common law duty of care does not exist where its imposition may give rise to an incoherency in the law and conflicts with a person’s other rights and obligations. Further reliance was placed on the High Court’s decisions in Cole v South Tweed Heads Rugby League Football Club Ltd[16] and C.A.L No 14 Pty Ltd v Motor Accidents Insurance Board[17] where the High Court considered the existence of a duty of care owed by a publican to its patrons. In particular, the defendant relied on the decision of Gummow, Heydon and Crennan JJ in C.A.L and their Honours’ discussion of the incoherence in that case in finding a duty of care to stop the deceased riding his motorcycle home in an inebriated state and the torts of assault and battery. Reference was also made to the principle of coherence in cases with other factual scenarios including Hogno & Anor v Racing Queensland Ltd & Ors.[18]

[60] Having considered those authorities I do not consider there is any factual basis in this case to support an argument that the defendant does not owe a duty of care because such a duty of care would be incoherent with its other rights and obligations. In my view the factual situation in this case quite different to the authorities cited in support of that argument. Unlike C.A.L there is no incoherence between the duty of care owed to the plaintiff not to injure him when removing him from the premises and the duty not to commit an assault against the plaintiff. As the plaintiff submitted, the High Court found in Williams v Milotin[19] that a plaintiff is able to sue both in trespass and in negligence arising from one course of conduct.

[61] Further, I cannot see that there is an incoherency between the rights and duties of the defendant as outlined in the Liquor Act and a duty of care owed to the plaintiff. The Act allows the removal of patrons using reasonable and necessary force. Under the common law, the defendant also has a right to remove patrons.[20] These rights, in and of themselves, do not create an incoherence with a licensee’s duty of care to patrons to ensure that they are not injured on their removal.

[62] In addition, the Act does not exclude the right of the plaintiff to seek a common law remedy, nor does it outline any statutory penalty for a breach of s 165(3) of the Liquor Act where the force used was not reasonable or necessary. Whether s 165 allowed for the forcible removal of the plaintiff in the case could go towards the consideration of whether or not there was a breach of any duty owed to the plaintiff and the extent to which the plaintiff contributed to his injuries through intoxication and by resisting removal.

[63] In my view there is no incoherency between a common law duty of care and the rights and duties of the defendant under the Liquor Act. Furthermore the recent Court of Appeal decision in Lamble v Howl at the Moon Broadbeach Pty Ltd[21] and Helman J’s decision in Ferguson v Calnan & Anor[22] both related to the removal of patrons under similar provision of the Liquor Act and they both proceeded without any issues of incoherency being considered. I am therefore satisfied that the defendant’s argument of incoherency must fail.

David Cormack – Brisbane Barrister & Mediator

 

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