Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420
Tort; Negligence; elements of liability; causation of harm; the 'but for' test.
Facts: Adeels Palace Pty Ltd operated a restaurant, with a bar and dance floor, in Sydney. On 31 December 2002 the restaurant was full of people celebrating the New Year. At some stage an argument began on the dance floor and quickly escalated into a widespread brawl. One person who was involved in the fighting was struck in the face and began bleeding. He left the restaurant, returning with a gun. On re-entering the restaurant, he shot two people, Mr Bou Najem in the leg and Mr Moubarak in the stomach. The gunman then left the restaurant. Bou Najem and Moubarak sued the restaurant in Negligence. They argued that, by not having security guards at the door, the restaurant had breached a duty of care owed to its customers, and that this breach had resulted in their being shot by the gunman.
Issue: Was the absence of security guards at the restaurant a breach of a duty of care owed to the plaintiffs, and was this breach the cause of the harm they suffered?
Decision: The court held that the restaurant owed each plaintiff a duty to take reasonable care to prevent injury to patrons from the violent, quarrelsome or disorderly conduct of other persons. However, the court held that the absence of security guards, even if it amounted to a breach of this duty of care, had not caused the harm suffered by the plaintiffs.
Reason: The court took the view that on the balance of probabilities security personnel would not have stopped the re-entry to the restaurant of a man armed with a gun who was ready and willing to use the weapon to get revenge. The court said (at 442): "In the present case … the 'but for' test of factual causation was not established. It was not shown to be more probable than not that, but for the absence of security personnel (whether at the door or even on the floor of the restaurant), the shootings would not have taken place. That is, the absence of security personnel at Adeels Palace on the night the plaintiffs were shot was not a necessary condition of their being shot."