POPOVIC v WOLLONGONG SPANISH CLUB LTD [1993] NSWCA 215

POPOVIC v WOLLONGONG SPANISH CLUB LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and SHELLER JJA 18 March 1993, 16 April 1993

[1993] NSWCA 215

NEGLIGENCE — duty of care — injury to innocent patron on dance floor — patron struck by security officer retreating after exchange of blows with other patrons — whether security officer negligent — whether he acted in self-defence or retaliation — whether he ought to have refrained from retaliation in the circumstances of the confined space of the dance venue and his own "huge" size — whether security officer ought first to have called for assistance from fellow workers and/or police — whether blows struck in self-defence — held: (Clarke JA, Sheller JA concurring; Kirby P dissenting): There was no sufficient evidence of negligence on the part of the security officer to indicate a want of care to persons, such as the injured party, dancing in the vicinity — his blow was struck in self-defence and was reasonable and understandable in the circumstances.

Rogers v Whitaker (1991) 23 NSWLR 600 (CA) referred to.

Kirby P This appeal challenges a judgment entered for the defendant in a personal injuries action brought in the District Court.

As it was finally argued, the case concerned the vicarious liability of the respondent club for the alleged failure of a security officer to take reasonable care for the safety of persons such as the appellant. She went to the club for an enjoyable evening, dancing with her friends. She paid for the privilege. Without the slightest fault on her part she was seriously injured when the security officer appointed to safeguard her safety became embroiled in a fight with another patron. In practical terms, what is at stake in the appeal is who should bear the financial and other consequences of the damage and loss suffered by an innocent patron, injured in this way. Should it be the club, as responsible in law for the conduct of its security officer? Or does the common law require that the appellant receive no damages and, instead, be forced to suffer her damage and bear her losses herself?