A RECENT decision of the Court of Appeal dealt with an appeal from a decision of the District Court concerning damages paid to a person who had been “clobbered” in a pub.
Clobbered was the expression used by the victim.
It almost makes it sound like a friendly cuff between mates as in, “come over ‘ere cobber”.
The incident was apparently far from friendly with the victim sustaining serious injuries. The owners of the pub have been ordered to cough up a large amount of money to the victim of the attack.
On August 28, 2005 Jason Lewis was crowned New South Wales light welterweight amateur boxing champion.
He went to the pub in Forbes to celebrate with his trainers, training partners and mates. At about 1.30 in the morning he was clobbered in the toilets of the pub by a “big dude” covered in tattoos.
Evidence given in the District Court was that this big dude had been involved in a fight in the pub earlier on in the evening. Other people at the pub, including bar staff, broke up the fight and told the big dude to settle down. The big dude, however, was not told to leave the pub.
Jason Lewis went to the toilet. He heard a man - the big dude - say “here’s the boxer. Oh, here we’ve got the big-time hero boxer”. Next thing Jason Lewis knew he was on the ground being kicked in the leg and ribs; “being clobbered.”
Although there was some dispute about whether the big dude had actually been involved in a fight in the pub prior to assaulting Jason Lewis, the judge found as a fact that the big dude had been fighting in the pub earlier in the evening.
In deciding the question of whether the owners of the pub were liable to Jason Lewis, the judge posed this question: “Should the hotel have taken action against the “big dude” after the first fight which would have prevented him from being a threat to the patrons of the hotel”.
The judge found that the pub had failed in its duty to Jason Lewis by failing to evict the big dude after he was involved in the first fight.
The judge found the hotel owners liable to Jason Lewis for damages.
Clobbered is one word. Feckless is another. I love this word. I would describe the finding of hotel owners as being liable for the criminal conduct of its patrons as feckless except in the most extraordinary of circumstances.
Certainly there are good grounds to argue that hotel owners are liable for their own employees or contractors laying into patrons, but for me I just cannot see the sense in this development in the law.
It seems to suggest that a person can fill themselves up, clobber someone, and it is the hotel owner’s fault.
- Toby Tancred
Whiteley Ironside & Shillington
