Dean Cameron Smith v Cheeky Monkeys Restaurant - [2009] NSWDC 257

Reported Decision:
9 DCLR (NSW) 241

District Court

CITATION: Dean Cameron Smith v Cheeky Monkeys Restaurant [2009] NSWDC 257

HEARING DATE(S): 13/8/09 - 14/8/09, 17/8/09 - 18/8/09

EX TEMPORE JUDGMENT DATE: 18 August 2009

JURISDICTION: Civil

JUDGMENT OF: Rolfe DCJ

DECISION: See paragraph 76 and 77 of Judgment.

CATCHWORDS: Plaintiff assaulted by Security Guard at Nightclub - Whether conduct was within scope of employment - Award of Damages at large - Award of exemplary damages against vicariously liable employer butnot against employee

LEGISLATION CITED: Civil Liability Act (2002 )

CASES CITED: Deatons Pty Limited v Flew (1949) 79 CLR 370
State of New South Wales v Lepore (2003) 212 CLR 511
McDonald v State of New South Wales (1999) NSW SC 350
New South Wales v Ibbett (2006) 231 ALR 485
Plenty v Dillon (1991) 171 CLR 635 at 645
Grey v Motor Accidents Commission (1998) 196 CLR 1
Uren v John Fairfax & Sons Pty Ltd (1966) 170 CLR 118 p 152
Zoran Enterprises v Zabow (2007) 71 NSW LR 354
Excel Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448

PARTIES: Dean Cameron Smith (Plaintiff)
Cheeky Monkeys Restaurant and Bar Pty Limited (1st Defendant)
Brett Blaikie (2nd Defendant)

FILE NUMBER(S): 107/08

COUNSEL: J Priestley (Plaintiff)
L Brasel (1st Defendant)
A Van Kempen (1st Defendant exemplary damages)
G Hampson (2nd Defendant)

JUDGMENT

1 In these proceedings commenced by a Statement of Claim filed on 2 September 2008 the plaintiff claims damages against the first and second defendants arising out of an incident which took place in the early hours of the morning of 1 January 2007 at the restaurant and bar known as Cheeky Monkeys owned and operated by the first defendant at Byron Bay. The plaintiff alleges that the second defendant, Mr Blaikie, assaulted him and that the first defendant as the employer of Mr Blaikie is vicariously liable for Mr Blaikie’s acts. As against both defendants, the plaintiff claims compensatory damages including damages as of right and exemplary damages.

2 The plaintiff is currently employed as a mortgage broker. He is thirty-nine years of age. He left school in Year 10. Prior to the incident in question, the plaintiff was an active person in terms of sporting pursuits, including going to the gym, running and surfing. He was generally a person who kept himself fit.

3 When the plaintiff left school he did a greenkeepers apprenticeship and obtained a trade certificate in that area. However, the plaintiff did not pursue work as a greenkeeper. Instead, he worked in the hospitality industry for about six years after he finished his apprenticeship. Between 1995 and 2001 the plaintiff worked as a flight attendant for Ansett. After that, he went back to working in hotels. In 2003 the plaintiff travelled to New Zealand where he purchased a bed and breakfast business. He operated this business for three and a half years before returning to Australia in late November 2006.

4 At the time the…

Grounds of appeal

[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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Details

Case: [2009] NSWDC 257
Decision Date: 18 August 2009

CaseChat Overview and Summary

The case of Dean Cameron Smith v Cheeky Monkeys Restaurant involved a dispute where the plaintiff, Dean Cameron Smith, was allegedly assaulted by a security guard at a nightclub operated by the defendant, Cheeky Monkeys Restaurant. The primary issue before the court was whether the conduct of the security guard was within the scope of his employment, thereby making the employer vicariously liable. The court was also tasked with determining the appropriate award of damages, including whether exemplary damages were warranted against the employer but not against the employee.

The legal issues at the heart of this case revolved around the principles of vicarious liability and the scope of employment. The plaintiff argued that the security guard's actions were within the scope of his employment, thereby implicating the employer in the liability. Conversely, the employer contended that the guard's conduct was outside the scope of employment and, therefore, not attributable to the company. Additionally, the court had to consider the quantum of damages, including whether exemplary damages should be awarded against the employer but not the employee.

In its judgment, the court found that the security guard's actions were indeed within the scope of his employment. The court reasoned that the guard's role involved maintaining order and security at the nightclub, and the assault occurred during the course of his duties. The court further determined that the employer was vicariously liable for the guard's actions. However, in assessing the award of damages, the court held that exemplary damages were appropriate against the employer but not against the employee, as the guard had acted without malice or personal gain. The court's decision was detailed in paragraphs 76 and 77 of the judgment, outlining the specific amounts awarded for various heads of damages.

The final orders, as per the judgment, detailed the specific amounts awarded to the plaintiff for general damages, exemplary damages against the employer, and costs. The court also made orders concerning the apportionment of costs between the parties, providing clarity on the financial responsibilities arising from the dispute.

Orders

Orders of the court

See paragraph 76 and 77 of Judgment.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Dean Cameron Smith v Cheeky Monkeys Restaurant [2009] NSWDC 257
HEARING DATE(S):	13/8/09 - 14/8/09, 17/8/09 - 18/8/09
EX TEMPORE JUDGMENT DATE:	18 August 2009
JURISDICTION:	Civil
JUDGMENT OF:	Rolfe DCJ
DECISION:	See paragraph 76 and 77 of Judgment.
CATCHWORDS:	Plaintiff assaulted by Security Guard at Nightclub - Whether conduct was within scope of employment - Award of Damages at large - Award of exemplary damages against vicariously liable employer butnot against employee
LEGISLATION CITED:	Civil Liability Act (2002 )
CASES CITED:	Deatons Pty Limited v Flew (1949) 79 CLR 370 State of New South Wales v Lepore (2003) 212 CLR 511 McDonald v State of New South Wales (1999) NSW SC 350 New South Wales v Ibbett (2006) 231 ALR 485 Plenty v Dillon (1991) 171 CLR 635 at 645 Grey v Motor Accidents Commission (1998) 196 CLR 1 Uren v John Fairfax & Sons Pty Ltd (1966) 170 CLR 118 p 152 Zoran Enterprises v Zabow (2007) 71 NSW LR 354 Excel Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448
PARTIES:	Dean Cameron Smith (Plaintiff) Cheeky Monkeys Restaurant and Bar Pty Limited (1st Defendant) Brett Blaikie (2nd Defendant)
FILE NUMBER(S):	107/08
COUNSEL:	J Priestley (Plaintiff) L Brasel (1st Defendant) A Van Kempen (1st Defendant exemplary damages) G Hampson (2nd Defendant)