The Plaintiff was stabbed at the Defendant’s establishment. He sued the Defendant for negligence, or breach of duties under the Occupier’s Liability Act or of a commercial host to its patrons. The Defendant brought an Application for Summary Dismissal.

Master Schlosser stated that the common test in recent Summary Judgment cases is that there is “no issue of merit that genuinely requires a Trial” and the existing record allows for a fair and just determination on the merits. This change in wording from the prior test encapsulates that there “isn’t an issue that requires forensic testing through the Trial procedure”. Master Schlosser noted that Justices in Chambers have limited power to weigh evidence, evaluate credibility and draw inferences from Affidavits. Therefore, a legislative change is likely necessary before a Master is able to deal with conflicting Affidavit evidence that goes to a central issue, without consent of the parties.

Master Schlosser held that Summary Judgment performs two functions: (i) it is a gatekeeper to weed out unmeritorious claims or defences; and, (ii) it is available as a dispute resolution mechanism, or a legitimate alternative means for adjudicating and resolving legal disputes. However, these two functions appear to invite two standards. The gatekeeper function deprives a litigant of full participation in the civil legal process, and thus requires a high standard. This standard has been stated as having to convince the Court that the party’s position is “unassailable” or “so compelling that the likelihood of success is very high”. However, Master Schlosser stated that this is really a question of balancing the confidence that the Court has in being able to determine a result on the evidence before it, and the risk of that result being wrong. The second function, wherein the parties use Summary Judgment voluntarily as a dispute resolution, attracts the ordinary civil standard. The risk of a wrong result is very low because the facts are often clear and undisputed, and the issue may simply be a legal question.

The facts of this case revealed that: (i) numerous security cameras and security staff were present; (ii) the assailant was checked at the door and his ID was screened; (iii) the security staff had been trained in accordance with the applicable standards; and (iv) the surveillance video depicted a spontaneous attack. As such, the Court held that the Defendant’s position was unassailable on the existing record: the Defendant did not fall short of the applicable standard of care. The Action was therefore dismissed.