Day v The Ocean Beach Hotel Shellharbour Pty Ltd

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.