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District Court 8 November 2023

Mansour v Marhop Pty Limited

[2023] NSWDC 476

Assault & violence

Citation: Mansour v Marhop Pty Limited [2023] NSWDC 476
Court: District Court of New South Wales
Date: 8 November 2023
Judge: Andronos SC DCJ

Background

The plaintiff, a 20-year-old patron, attended a hotel in Killara on the evening of 11 June 2021 with a group of friends. A separate group of his friends had earlier been refused entry to the hotel for intoxication and became involved in a heated confrontation with security guards outside the premises. The plaintiff left his table, crossed the beer garden, and approached the scene on the footpath to check on one of his friends who was on the ground.

The hotel's licensee and operations manager both became involved in the escalating incident. The plaintiff alleged that the licensee physically took him to the ground and detained him there, and that the operations manager assaulted him.

The plaintiff brought claims in assault, battery, and false imprisonment against the licensee personally and against the hotel operator (Marhop Pty Limited) as the licensee's and operations manager's employer. Marhop's vicarious liability for the conduct of both employees was not in dispute.

  • Whether the hotel's operations manager committed an assault on the plaintiff
  • Whether the licensee committed a battery on the plaintiff
  • Whether the licensee falsely imprisoned the plaintiff
  • Whether the defence of necessity justified the licensee's restraint of the plaintiff
  • Whether the licensee's conduct was authorised under s 100 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA)
  • What compensatory damages, if any, were appropriate for each established tort

Decision

Assault by the operations manager: The court found that the operations manager committed an assault on the plaintiff. The court awarded $3,000 in compensatory damages for this conduct.

Battery by the licensee: The court found that the licensee committed a battery on the plaintiff. The defendants argued necessity as a defence, contending that the plaintiff's behaviour and proximity to the Pacific Highway made physical intervention necessary. The court rejected this defence on the facts. The court also rejected the argument that the licensee's conduct fell within s 100 of LEPRA, which permits certain restraints in specific circumstances. The court awarded $10,000 in compensatory damages for the battery.

False imprisonment by the licensee: The court found that the licensee falsely imprisoned the plaintiff by restraining him on the ground on a public street. Although the detention was brief, the court emphasised that even short interference with personal liberty is a cognisable wrong. The plaintiff suffered humiliation and disgrace, having been held face-down on the footpath on a Friday evening near a venue where his friends remained, and likely sustained a head injury in the process. The court awarded $15,000 for the false imprisonment.

Vicarious liability: Because Marhop's vicarious liability was not in dispute, the court held Marhop jointly liable for the battery and false imprisonment by the licensee, and solely liable for the assault by the operations manager. The plaintiff did not press claims for aggravated or exemplary damages.

Orders Made

  • Judgment for the plaintiff against the first defendant (Marhop) for assault by its employee Nathan Moran: $3,000
  • Judgment for the plaintiff against both defendants for battery by the second defendant (the licensee), an employee of Marhop: $10,000
  • Judgment for the plaintiff against both defendants for false imprisonment by the second defendant, an employee of Marhop: $15,000
  • Interest and costs reserved
  • Proceedings otherwise dismissed

Key Takeaways

  • The District Court confirmed that even a brief physical restraint on a public street constitutes false imprisonment and is not a trivial wrong, and that a substantial portion of any damages award reflects the initial shock and humiliation of the detention rather than its duration alone.
  • The defence of necessity in the context of battery requires the defendant to establish that the physical intervention was genuinely necessary in the circumstances; the court declined to accept that defence where the facts did not support it.
  • Authorisation under s 100 of LEPRA does not arise automatically simply because a person is restrained near a road or public place; the licensee in this case failed to satisfy the conditions required by that provision.
  • Where an employer's vicarious liability is conceded, the employer and the employee who committed the relevant act are jointly liable for battery and false imprisonment, while the employer bears sole liability for an assault committed by a different employee.
  • In assessing damages for false imprisonment, the court drew on comparable awards including State of New South Wales v Riley [2003] NSWCA 208 and Zaravinos v State of New South Wales (2004) 62 NSWLR 58, while emphasising that awards are not simply proportional to the length of detention.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 100
- Liquor Act 2007 (NSW), s 77

Cases:
- Coote v Kelly; Northram v Kelly [2016] NSWSC 1447
- CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514
- Fontin v Katapodis (1962) 108 CLR 177
- Goldie v Commonwealth of Australia No 2 [2004] FCA 156
- Rixon v Star City Pty Ltd (2001) 53 NSWLR 98
- Ruddock v Taylor (2005) 222 CLR 612
- State of New South Wales v McMaster [2015] NSWCA 228
- State of New South Wales v Riley [2003] NSWCA 208
- The Nominal Defendant v Cordin [2017] NSWCA 6
- Uber BV v Howarth [2017] NSWSC 54
- Watson v Marshall & Cade (1971) 124 CLR 621
- Zaravinos v State of New South Wales (2004) 62 NSWLR 58