Everett & Anor v Comojo (UK) Ltd (t/a the Metropolitan) & Ors

The management of a night club owes its guests a duty to take reasonable care to protect them from foreseeable violence by other guests. The duty arises where the Caparo requirements of foreseeability, proximity, and fairness, justice and reasonableness are met. Its content is the flexible common duty of reasonable care; it does not require a special, higher degree of foreseeability.

The precautions required depend on the establishment and its known risks. They may range from training staff to alert security to more active security arrangements. On the facts, a waitress acted reasonably by reporting a concern to her manager when no confrontation or violence appeared imminent.

The appellants were seriously injured in a knife attack by another guest at a members’ nightclub managed by the respondent. They sued the respondent after the assailant was not sued, the security contractor obtained summary judgment, and a default judgment against another defendant was unlikely to be enforceable.

At Central London County Court, the judge held that nightclub management could owe guests a duty concerning violence by third parties, but dismissed the claim because the waitress had no duty to take action at the relevant time. He stated, without reasons, that any breach in failing to alert security would have been causative.

The appeal concerned the existence and scope of the duty, whether the waitress breached it by speaking to the manager rather than a door supervisor, and causation.

1. Appeal dismissed. Lady Justice Smith, with whom Lord Justice Richards and Lord Justice Rix agreed, held that nightclub management owed guests a duty to take reasonable care in relation to injuries caused by third parties on the premises.

2. The proper starting point was the threefold test in [1990] 2 AC 605. The relationship was sufficiently proximate: management controlled admission and removal, guests relied on its competent management, and the relationship had an economic character. Assault between guests was foreseeable in licensed premises, although the degree of risk and the precautions required varied. It was fair, just and reasonable to impose a duty, consistently with the established occupiers’ duty under the Occupiers’ Liability Act 1957.

3. The duty was the ordinary, flexible common duty of reasonable care. The court rejected a requirement for a specially high degree of foreseeability analogous to the more confined duty in [1970] AC 1004. What reasonable care requires depends on the circumstances, including the establishment’s experience of weapons, violence, and disorder. Appropriate arrangements may range from staff training and a means of alerting security to searches or security personnel being present where risks justify them.

4. There was no breach. At the material time the waitress had reason to think that there might be a confrontation, but no reason to think that one was imminent or that the guest had a weapon. The customer concerned had no history of causing trouble. Reporting the matter to the manager, rather than independently calling a door supervisor, was a sensible response; she could not have been criticised even had she done nothing.

5. It was therefore unnecessary to determine causation. The judge’s unreasoned post-judgment conclusion on that issue was not examined.

• Court of Appeal (Civil Division): dismissed the appellants’ appeal in [2011] EWCA Civ 13.

• Central London County Court: HH Judge Wakefield dismissed the claims for personal-injury damages by order dated 17 February 2010. The judgment concluded that no duty to take action arose on the facts, although nightclub management could in principle owe a duty concerning third-party violence.