Citation: Julia Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2012] NSWDC 294
Court: District Court of New South Wales
Date: 23 April 2012
Judge: Cogswell SC DCJ
Background
The plaintiff was a regular patron at her local hotel in Shellharbour. On the evening of 4 July 2008, she spilled some wine on another patron and hotel staff decided she should be removed from the premises. The dispute was not about whether the decision to remove her was justified, but about how the removal was carried out.
A security guard employed by the third defendant, a security company called Checkmate Security International Pty Ltd, pulled the bar stool out from under the plaintiff while she was sitting on it. She was unaware of what was happening, was affected by alcohol, and fell heavily to the floor, sustaining injury.
The plaintiff sued the security company, the hotel (first defendant), and the hotel's licensee (second defendant). The security company filed no defence and did not appear at the hearing, making the question of the hotel's and licensee's liability the central live issue at trial.
Legal Issues
- Whether the security guard's conduct in pulling the stool away constituted an assault and battery
- Whether the security company was vicariously liable for the guard's conduct as his employer
- Whether the hotel and licensee were vicariously liable for the guard's conduct
- Whether the Civil Liability Act 2002 (NSW) applied to limit or exclude damages
- What damages, including aggravated and exemplary damages, were appropriate
Decision
Battery established. His Honour found that pulling the stool from under the plaintiff while she was seated and unaware of what was happening constituted a battery. The court rejected the argument that intention to cause injury was a necessary element, finding that it was sufficient that the act was intentional. CCTV footage and the guard's own evidence in earlier Local Court proceedings confirmed that he deliberately removed the stool to get her to stand up, and that she fell as a result.
Security company vicariously liable. The guard was employed by Checkmate, a fact established by his own prior evidence, an undefended cross-claim, and other witness testimony. His conduct in removing the patron, while wrongful in method, was sufficiently connected to his authorised role of removing patrons from the premises. The court found the wrongful act was a mode of carrying out an authorised task, engaging the security company's vicarious liability.
Hotel and licensee not vicariously liable. The hotel and licensee engaged Checkmate as an independent contractor, not as an employer. Applying the principles from Sweeney v Boylan Nominees and Deatons Pty Limited v Flew, the court found the hotel and licensee exercised no control over the manner in which Checkmate's guards carried out their work. The relevant authorities established that a principal is generally not vicariously liable for the torts of an independent contractor, and no exception applied here.
Civil Liability Act 2002 did not apply; aggravated and exemplary damages awarded. The court held that the Civil Liability Act 2002 does not apply to intentional torts such as assault and battery. Accordingly, neither the damages caps nor the prohibition on exemplary damages under that Act applied. His Honour awarded general damages, aggravated damages of $2,500 to reflect the public humiliation suffered by a regular patron in familiar surroundings on a Friday night, and exemplary damages of $5,000 against the security company to deter similar conduct, noting that the guard had defended his actions. The total judgment against the third defendant was $10,000.
Orders Made
- Verdict and judgment for the first defendant (hotel) and second defendant (licensee) against the plaintiff
- Verdict and judgment for the plaintiff against the third defendant (Checkmate Security International Pty Ltd) in the sum of $10,000
- The plaintiff to pay the costs of the first and second defendants
- The third defendant to pay the plaintiff's costs, as agreed or assessed
Key Takeaways
- The District Court confirmed that the tort of battery does not require an intention to cause harm or injury; an intention to perform the act that directly causes contact is sufficient.
- Where a security guard is supplied by an independent contractor security company, the occupier of licensed premises will not ordinarily be vicariously liable for the guard's tortious conduct, provided the occupier does not exercise control over how the work is performed.
- A wrongful method of carrying out an authorised task (such as removing a patron from licensed premises) can still attract vicarious liability against the guard's own employer, where the act is sufficiently connected to the scope of authorised work.
- The Civil Liability Act 2002 does not apply to intentional torts such as assault and battery, leaving open awards of aggravated and exemplary damages in appropriate cases.
- Aggravated damages may reflect the particular humiliation of a patron removed in a degrading manner in front of others at their regular venue; exemplary damages remain available against an employer whose employee engages in unacceptable conduct and shows no remorse.
Legislation and Cases Referenced
Legislation
- Civil Liability Act 2002 (NSW), including ss 11A and 21
Cases
- Colonial Mutual Life Assurance Society Ltd v The Producers and Citizens Co-operative Assurance Company of Australia Ltd (1931) 46 CLR 41
- Deatons Pty Limited v Flew (1949) 79 CLR 370
- Hopper v Reeve 7 Taunt 699
- Naidu v Group 4 Securitas Pty Ltd [2005] NSWSC 618
- New South Wales v Lepore (2003) 212 CLR 511
- Sprod v Public Relations Oriented Security Pty Ltd [2007] NSWCA 319
- State of New South Wales v Steven Charles Radford [2010] NSWCA 276
- State of New South Wales v Williamson [2011] NSWCA 183
- Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161
Note: This judgment was subsequently appealed: Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250. Readers should consult the Court of Appeal decision to understand the current status of these findings.