Bars Consultants conducts a number of Underwriter Surveys before insurance coverage is granted by some of the largest underwriting firms in Australia including the Australis Underwriter Group. In our experience the majority of claims against licensed venues can be categorised as follows:
Liability for the conduct of guests causing injury.
Accidental or negligent acts of guests - A licensed premises is liable for injuries to guests caused by the accidental or negligent acts of other guests if the licensed premises could have reasonably discovered the wrong doer’s conduct and could have protected other guests by controlling the conduct of the wrong doer or by giving adequate warning to enable guests to avoid harm.
Assaults by guests - A licensed premises is liable for assault upon a guest by another guest where it has reason to anticipate the assault and fails to take reasonable steps to prevent the assault or interfere with its execution. Conversely, they are not liable for an assault committed under such circumstances where it could not reasonably have anticipated the assault in time to prevent the occurrence.
Admitting known offenders - A licensed premises is guilty of negligence towards its guests if it admits people who are known to be violent or disorderly.
Liability for acts of staff and security officers
Incidents on the premises - If staff or security commit an assault in the course of their duties, the licensed premises and/or security company will likely be found vicariously liable for the assault. Similarly, if staff or security act overzealously in restraining a patron and injure the patron, the licensed premises and/or security company can be found vicariously liable.
Incidents outside the doorway - For example – where security are trying to limit entry or disburse a crowd. The same principles apply as above, if the security officer is overzealous or assaults a patron in the course of his or her duties, the licensed premises/security company can be found liable.
Incidents down the street - Cases have shown that even where security guards have followed a patron away from a licensed premises and down an alleyway to assault him (well away from the licensed premises) the assault was still considered to be in the course of the security officer's employment duties and the licensed premises/security company were found liable. The situation may be different if a non-security employee assaulted a patron.
Who is responsible – the licensed premises or the security company? - This depends on the facts of the claim, the policies in place and the contract between the licensed premises and the security company. Unfortunately in Queensland these security contracts are rare which places the onus back onto the licensed premises in the majority of cases.
Public Liability Risks
Liability for slips and falls (high risk) - Generally, licensed premises are required to have appropriate cleaning procedures in place to detect and clean up spills and other hazards. There is no hard and fast rule for an acceptable procedure – in a shopping centre food court a cleaner is expected to be almost constantly cleaning. In other areas of a shopping centre, 15-20 minute rotations have been found to be acceptable. It is also necessary to appropriately make patrons aware of hazards and ‘hidden traps’. For example, delineation of stairs with strip lighting.
Liability of the licensed premises to intoxicated patrons (low risk) - Other than in exceptional cases, a licensee or proprietor of a licensed venue does not owe a general duty of care to monitor or minimise the consumption of alcohol and to protect that person from the consequences of their consumption of alcohol. However, if the patron is in a vulnerable state – for example, passed out – that may enliven a duty to take reasonable steps to protect the patron from harm. Responsible service of alcohol (RSA) and training on RSA is important in this area.
Events and functions (medium risk) - Your liability to a patron who is injured will depend on your involvement in organising the event/function. If private event organisers and contractors are engaged to stage the event, they will possibly face liability. Your exposure to liability if an incident arises will depend heavily on the contractual arrangements in place.
What to do now
Underwriter Survey – starting at $660* (incl. GST)
The survey itself will look at the administrative and operational components of the business with a view of not only gathering the required information but discuss risk mitigations strategies as we more forward. Below is a list of some of the information the auditors have requested in the past. However, please note that this list is not exhaustive and other information maybe required at the time of the survey.