A pub has avoided liability for a customer’s assault on another patron after a court ruled it could not have been expected to identify or act on the attacker’s drunken state.

The Royal Melbourne Hotel and Peter Sheppard were sued by Rene Van Rullen, who suffered a broken kneecap and torn ligament after being shoved over in the venue. He sought $200,000 in damages after the injuries required surgery, which in turn caused him to develop a deep-vein thrombosis and pulmonary embolism. 

But the Victorian County Court has found that only Mr Sheppard is liable for the “unexpected assault that had particularly unfortunate consequences”. 

The fracas happened on May 30 2018, when the two men were drinking at separate tables in the Melbourne venue. 

Mr Van Rullen said he was not drunk, but that a companion of his was. 

Mr Sheppard – who admitted the shove but also argued the pub should be held partly liable – said he was drunk, having arrived at the Royal Melbourne Hotel with a friend in the early evening after sinking beers at a different pub from about midday. 

The court heard the altercation started about 10pm, when Mr Van Rullen’s companion approached Mr Sheppard’s table and “began singing You’ve Lost that Lovin’ Feelin’. There was then some interaction between the two tables, which culminated in Mr Sheppard walking over to Mr Van Rullen and pushing him, causing him to fall to the ground and suffer the injuries.” 

Mr Van Rullen argued that Mr Sheppard should have been denied entry to the pub because he was showing signs of drunkenness; he should have been refused service or asked to leave; and pub staff should have intervened to stop the assault. 

However, while accepting the venue owed Mr Van Rullen a duty of care, Judge Julie Clayton said there was no evidence Mr Sheppard showed obvious signs of being too drunk to enter. 

Having viewed CCTV footage of the night, she found his rate of drinking was not enough to raise a “red flag” with staff, nor was his behaviour bad enough to demand their attention. 

“I am not persuaded ... that a staff member, monitoring Mr Sheppard over the course of his time at the hotel, ought reasonably to have identified that he was intoxicated,” she said. 

The judge added the footage “does not support a conclusion that Mr Sheppard became increasingly intoxicated. 

“He appears much the same from the start of the [CCTV footage] until about 21.45pm ... This was the time when, on Mr Sheppard’s evidence, he was engaged in a quiet and emotional conversation. 

“To detect the earlier momentary signs of intoxication, such as slight unsteadiness, would require a degree of surveillance that would impose too high a duty on the hotel.” 

On the question of staff intervening to stop the altercation and assault, the judge was not satisfied that “in the context of the night, the staff member should have been keeping a particularly careful eye and been closely monitoring the table”. Once the altercation began, there was not enough time for a staff member to step in, Judge Clayton said. 

See the ruling here.