Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250
Hearing dates:
8 July 2013
Decision date:
05 August 2013
Before:
Meagher JA [1]; Emmett JA [2]; Leeming JA [5]
Decision:
1. Appeal dismissed with costs.
2. To the extent that the third respondent has purportedly been joined to this appeal, its name be removed.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
TORTS - vicarious liability - plaintiff injured when removed from licensed premises by security guard - removal constituted assault and battery - employer of security guard vicariously liable - whether hotel or licensee vicariously liable for security guard's tortious conduct - whether tortious conduct directly authorised - whether security guard agent of hotel or licensee - whether licensee directly liable under Liquor Act 2007, s 91 - whether Australian law admits of theory of dual vicarious liability
DAMAGES - general principles - aggravated damages - exemplary damages - appeal on ground that damages inadequate - high level of appellate deference - no appellable error found
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250
Case
[2013] NSWCA 250
Decision Date
CaseChat Overview and Summary
The plaintiff, Mr. Day, suffered injury when he was removed from licensed premises by a security guard employed by a third party. The removal constituted an assault and battery. Mr. Day sued the licensee of the hotel, The Ocean Beach Hotel Shellharbour Pty Ltd, for damages. The appeal concerned the liability of the hotel for the security guard's tortious conduct and the adequacy of the damages awarded. The appeal was heard by Meagher, Emmett and Leeming JJA of the Court of Appeal of New South Wales.
The primary legal issues before the Court of Appeal were whether the hotel was vicariously liable for the assault and battery committed by the security guard, and whether the hotel was directly liable under section 91 of the *Liquor Act 2007* (NSW). The court also considered whether the tortious conduct was directly authorised by the hotel, and whether the security guard could be considered an agent of the hotel. Finally, the court addressed the question of whether Australian law recognises a theory of dual vicarious liability and whether the damages awarded were inadequate.
The Court of Appeal held that the hotel was vicariously liable for the tortious conduct of the security guard. The court reasoned that the security guard's actions, although tortious, were undertaken in the course of his employment and for the purpose of carrying out the duties for which he was engaged by the hotel. The court found no error in the primary judge's assessment of damages, noting the high level of deference afforded to trial judges in such matters and that no appellable error had been demonstrated. The court also clarified that the third respondent had been improperly joined to the appeal.
The appeal was dismissed with costs. The court ordered that the name of the third respondent be removed from the appeal.
Orders
Orders of the court
1. Appeal dismissed with costs.
2. To the extent that the third respondent has purportedly been joined to this appeal, its name be removed.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]