Dickson v Chaffey & Reddawn
[2012] NSWSC 336
•13 April 2012
Supreme Court
New South Wales
Medium Neutral Citation: Dickson v Chaffey & Reddawn [2012] NSWSC 336 Hearing dates: 4 April 2012 Decision date: 13 April 2012 Jurisdiction: Common Law Before: Beech-Jones J Decision: 1. Prayers 1 and 2 of the notice of motion dated 13 October 2011 be dismissed.
2. Stand over the balance of the notice of motion, including costs, to 3 May 2012 at 9.30 am before Beech-Jones J.
3. Direct the Plaintiff on or before 24 April 2012 to use its best endeavours to serve on the First Defendant:
(i) a copy of these reasons;
(ii) a covering letter advising the First Defendant of the date the matter is next before the Court, and advising the First Defendant, that if he wishes to make any submission to the contrary of the making of an order for a separate hearing on liability, that he may do so before Beech-Jones J on that date.
4. Direct the Plaintiff and the Second Defendant to confer as to the appropriate form of order for a separate hearing on liability.
5. Direct the Plaintiff and the Second Defendant to, on or before 27 April 2012, file and serve either an agreed form of order for a separate hearing on liability or, failing agreement, their own forms of order.
6. There be liberty to apply in relation to the above directions.
7. The exhibits be returned.
Catchwords: PRACTICE AND PROCEDURE - summary judgment - vicarious liability - principle in Wickstead v Browne - preliminary question - separate hearing on liability. Legislation Cited: Uniform Civil Procedure Rules 2005
Civil Procedure Act 2005Cases Cited: Alstom Australia Ltd v NAP Acoustics Pty Ltd [2004] NSWSC 217
Australian Securities Investments Commission v Sydney Investment House Equities Pty Ltd [2007] NSWSC 434
Boumelhem & Anor v NSW Crime Commission & Ors [2006] NSWSC 1413
Breheny v Cairncross & 2 Ors [2002] NSWCA 69
Canadian Pacific Railway Company v Lockhart [1942] AC 591
Deatons Pty Ltd v Flew (1949) 79 CLR 370
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215
Leerdam & Anor v Noori & Ors [2009] NSWCA 90; (2009) 255 ALR 553
Morris v C W Martin & Sons Ltd [1966] 1 QB 716
PAO & Ors v Trustees of the Roman Catholic Church for the Archdioceses of Sydney & Ors [2011] NSWSC 1216
Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180
State of New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511
Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1
Wickstead v Browne [1992] NSWCA 272; (1992) 30 NSWLR 1Category: Interlocutory applications Parties: Steven George Dickson (Plaintiff)
Russell Peter Chaffey (First Defendant, no appearance)
Event Safety & Security Solutions Pty Ltd (ACN 117 191 287) trading as Reddawn (Second Defendant)Representation: Counsel:
Mr S G Campbell SC (Plaintiff/Respondent on motion)
Mr M T McCullough SC (Second Defendant/Applicant on motion)
Solicitors:
Stacks/Goudkamp Lawyers (Plaintiff/Respondent on motion)
Wotton + Kearney (Second Defendant/Applicant on motion)
File Number(s): 2010/401443
Judgment
Introduction
By notice of motion filed 14 October 2011 the second defendant, Event Safety & Security Solutions Pty Ltd trading as Reddawn ("Reddawn"), seeks summary judgment against the plaintiff pursuant to r 13.4 of the Uniform Civil Procedure Rules ("UCPR"), or, in the alternative, that the statement of claim be struck out pursuant to r 14.28. In the further alternative, Reddawn seeks an order pursuant to r 28.2 that the "question of liability in the proceedings" be determined as a separate question in advance of all other issues.
The proceedings arise out of an incident occurring in the early hours of 2 December 2007. The first defendant, Russell Peter Chaffey, was employed as a security guard by Reddawn. At about 2.50am on 2 December 2007 he was performing his duties outside "Q Bar" which is located within the licensed premises of the Exchange Hotel at 34 Oxford Street, Surry Hills. He was wearing his security uniform as required by Reddawn. His car was parked opposite the entrance to Q Bar in Oxford Street. The plaintiff, Steven George Dickson, was in the vicinity of Mr Chaffey's motor vehicle. He leant on the motor vehicle and the car alarm sounded. Mr Chaffey crossed the road and there was an altercation in which Mr Dickson claims that Mr Chaffey intentionally struck him. It is not in dispute that as a result of the altercation Mr Dickson suffered significant injuries.
In 2010 Mr Dickson filed a statement of claim against Mr Chaffey and Reddawn. He sued Mr Chaffey for assault and battery and pleaded that Reddawn was vicariously liable for Mr Chaffey's assault.
On 16 September 2011 an order was made extending the time for service of the statement of claim on Mr Chaffey until 30 September 2011. Due to difficulties in locating Mr Chaffey he was not served until 14 December 2011. At the hearing of this motion I made an order under r 1.12(2) of the UCPR extending the time for service of the statement of claim up to and including 14 December 2011. As at the date of the hearing of this motion Mr Chaffey had not entered a notice of appearance or filed a defence. He was not served with Reddawn's notice of motion and he did not appear at the hearing of the motion.
Reddawn has filed a defence. The defence admits many of the facts alleged in the statement of claim concerning the alleged assault and Mr Chaffey's position. I have set out the gist of those admissions above at [2].
Certain paragraphs of the statement of claim were either not admitted or denied. In particular, Mr Dickson pleads the following:
"7.The first defendant required his motor vehicle to travel to and from various venues to work as directed by [Reddawn]"
This paragraph is denied by Reddawn who further pleads that it had no legal, equitable or other interest in the motor vehicle.
Paragraph 8 of the statement of claim pleads:
"8.On the evening of 2 December 2007 the first defendant had parked his motor vehicle across the road from where he was working so that he could keep an eye on it during his employment duties."
Reddawn admits that on 2 December 2007 Mr Chaffey parked his motor vehicle across the road from where he was working but otherwise does not admit paragraph 8.
Paragraphs 17 and 18 of the statement of claim plead as follows:
"17.The assault committed by the first defendant occurred in the course of, and arising out of, his employment with the second defendant.
18.At all material times the second defendant was vicariously liable for the actions of the first defendant."
Both of these paragraphs are denied by Reddawn. In further response to paragraph 17 Reddawn pleads various facts concerning the assault which it says demonstrates that the actions of Mr Chaffey "in striking the plaintiff were entirely unconnected with his employment by [Reddawn]".
On 21 January 2011 Reddawn solicitors wrote to the plaintiff's solicitors seeking further and better particulars of the statement of claim. Question 9 of that letter asked the following which was said to relate to paragraphs 10 to 12 of the statement of claim:
"Is it alleged that [Reddawn] directed and or permitted Chaffey to leave the front entrance of Q Bar to cross Oxford Street and confront the plaintiff?"
Mr Dickson's solicitor replied:
"This is not within the plaintiff's knowledge at this time."
In relation to paragraph 17 and 18 of the statement of claim, Reddawn's request for particulars asked as follows:
"17.On what basis is it alleged that:
17.1Chaffey's assault on the plaintiff "occurred in the course of, and arising out of, his employment" with [Reddawn]?
17.2[Reddawn] is vicariously liable for Chaffey's assault on the plaintiff in the circumstances?
18.What was the duty of care allegedly owed by [Reddawn] to the plaintiff in the circumstances alleged in the [statement of claim].
19.If it is alleged that:
19.1Chaffey was under any express or implied authority of [Reddawn] to confront the plaintiff on the other side of Oxford Street opposite Q Bar; or
19.2In confronting the plaintiff, Chaffey was performing services in connection with his contract of service with [Reddawn];
Please specify the basis for those allegations."
The answers were as follows:
"17.1The nature of Mr Chaffey's employment requires him to use a motor vehicle. This motor vehicle was used to store work-related items such as vests and other items incidental to his employment. It is alleged his vehicle was required to be readily available in order to transport him upon direction by [Reddawn].
17.2[Reddawn] is responsible for the actions of Mr Chaffey as a subordinate.
18.[Reddawn] have a responsibility to ensure that its employees act in an appropriate manner when conducting employment activities. This includes, but is not limited to, the duty to ensure that its employees do not inflict excessive physical harm on anyone whilst undertaking duties as a security guard.
19.1Yes.
19.2Yes."
Four points should be noted about this. First, question and answer 18 do not make sense. They assume that there is a negligence claim pleaded but that is not the case. Second, to the extent that specific facts, matters and circumstances are pleaded which are said to give rise to vicarious liability on the part of Reddawn they all concern the connection between Mr Chaffey, his motor vehicle and his employment with Reddawn. These are the matters pleaded in paragraphs 7 and 8 of the statement of claim and expanded upon in paragraph 17.1 of the answers to particulars. Third, the answers given in 19.1 and 19.2 of Mr Dickson's reply to the request for particulars were non-responsive. What was being asked was not simply whether any allegation was being made that Mr Chaffey was under express or implied authority from Reddawn to confront Mr Dickson but, if he was, what was the basis for that allegation. No such basis was specified. Fourth, the combination of answer 9, the assertions in 19.1 and 19.2 and the broad allegations in paragraph 18 involve Mr Dickson seeking to leave open the possibility of proving a form of vicarious liability that does not rest upon some connection between Mr Chaffey's motor vehicle and his employment. In particular, Mr Dickson seeks to leave open the possibility of proving that some form of direction or implied authority was given to Mr Chaffey by his employer that extended the scope of his employment so that it could encompass his conduct in confronting Mr Dickson. Although it is a generous reading of the statement of claim and particulars, I consider that such a case is left open on the pleadings.
At the hearing of the motion, Reddawn read an affidavit from its solicitor which annexed various material from the police investigation and subsequent trial of Mr Chaffey. The material is generally consistent with what I have described above at [2]. It points to Mr Chaffey having confronted Mr Dickson in the belief that Mr Dickson had damaged or threatened to damage his motor vehicle. The material includes a written statement from a director of Reddawn recording that he had told Mr Chaffey not to take his car to work because it could be damaged and denying Reddawn had any interest in the motor vehicle or paid Mr Chaffey for any motor vehicle related expenses. At his trial, Mr Chaffey had stated that he was protective of his car because he needed it to travel to work.
Reddawn also tendered a subpoena that had been issued by Mr Dickson's solicitor to the liquidator of Reddawn which had apparently not yielded any documents. They also point to a statement by Mr Dickson's solicitors in the GCM document filed with the statement of claim recording the solicitor's opinion that discovery of documents would not be needed and neither would interrogatories. These matters were said to demonstrate the absence of potential sources of evidence available to Mr Dickson to fill in the evidentiary gaps in his case.
Summary Dismissal
Reddawn submits that the material demonstrates that Mr Chaffey was not given any instructions to approach Mr Dickson and that his actions were completely unconnected with his employment and related to a personal matter "namely, seeking revenge for the damage caused to his motor vehicle by [Dickson]". It submits that no reasonable cause of action is disclosed. It relies on various authorities to demonstrate that there could not be any vicarious liability in these circumstances because it is overwhelmingly clear that Mr Chaffey committed the alleged assault on a "frolic of his own" (Morris v C W Martin & Sons Ltd [1966] 1 QB 716 at 733; State of New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511 at [40] to [42]; Deatons Pty Ltd v Flew (1949) 79 CLR 370 at 379 (per Latham J) at 381 to 382 (per Dickson CJ) and at 382 (per McTiernan J)).
Further the second defendant submitted that the principle in Wickstead v Browne [1992] NSWCA 272; (1992) 30 NSWLR 1 at 11-12, concerning the inappropriateness on some occasions of granting an application for summary judgment at the behest of only one of a number of defendants, is inapposite to this application. This is said to be the case because there is no real controversy on the facts but merely a dispute as to whether the facts as admitted or pleaded give rise to vicarious liability. It was further submitted that there is no realistic possibility that Mr Chaffey might give evidence at any trial that will overcome the deficiencies in Mr Dickson's case.
Mr Dickson submits that the principle in Wickstead is applicable and operates to defeat the motion for summary judgment. He submitted that there are evidentiary gaps to be filled concerning the connection between Mr Chaffey, his car and his employment and points to the issues raised by the pleadings and the particulars that I have referred to above. He also submits that the answer to particular 9 and the scope of paragraph 18 of the statement of claim would entitle him at a trial to seek to elicit evidence from Mr Chaffey that may enable a case to be made that the confrontation between Mr Chaffey and Mr Dickson was not outside the scope of the former's employment.
The granting of summary judgment can only occur in a clear case. There have been various descriptions of the tests that have been applied which include "so obviously untenable that it cannot possibly succeed" and "manifestly groundless" (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129. As noted by Macfarlan JA in Leerdam & Anor v Noori & Ors [2009] NSWCA 90; (2009) 255 ALR 553 at [75]:
"Particular caution is required where factual questions are involved as it is difficult to predict in advance of a final hearing the precise manner in which the evidence will unfold."
There are two aspects to this matter that highlight the difficulties confronted by Reddawn in seeking summary judgment in a case such as this. First, the authorities concerning the circumstances in which an employer will be vicariously liable for the conduct of an employee who assaults a third party reveal that it is critical to ascertain what the employee's responsibilities were. In the case of Mr Chaffey this would include ascertaining what directions he may or may not have been given by his employer as well as ascertaining what matters were incidental to the performance of those duties. In relation to the former I have already concluded that the pleadings leave open the possibility of Mr Dickson making a case based on the existence of some direction from his employer. In relation to the latter, Mr Campbell SC referred me to Canadian Pacific Railway Company v Lockhart [1942] AC 591 in which an employer was held vicariously liable for a person injured by an uninsured car driven by one of their employees in the following circumstances, (at 600 - 601):
"In the present case Stinson was employed to work as a carpenter and general handyman and for that purpose he required to go from his headquarters at West Toronto Station to other railway buildings of the company throughout Toronto and district. The means of transport used by him on these occasions was clearly incidental to the execution of that which he was employed to do. He was not employed to drive a motor car, but it is clear that he was entitled to use that means of transport as incidental to the execution of that which he was employed to do ... "
It would be a bold extension of the principles of vicarious liability that would result in the facts pleaded in this case concerning the connection between Mr Chaffey, his car and his employment leading to a finding of vicarious liability against Reddawn. However, for the purpose of this motion, all that Mr Campbell SC seeks to do is point to that as a matter illustrating the type of factual enquiry that might, when taken with other matters, result in the conduct of Mr Chaffey being attributed to Reddawn.
The second matter concerns the principle in Wickstead v Browne which I referred to above at [20]. The relevant passage from the judgment of Handley JA and Cripps JA is as follows (at 11-12):
"However for another reason, which was first raised by the Court, the respondent as one of a number of defendants cannot be entitled to summary dismissal before trial because of evidentiary deficiencies in the plaintiff's case. If at the close of the plaintiff's case at the trial there was no evidence against this respondent he would not be entitled at that stage to judgment if any of the other defendants intended to go into evidence: see Menzies v Australian Iron & Steel Ltd (1952) 52 SR (NSW) 62; 69 WN (NSW) 68. The effect of this rule is now embodied in Supreme Court Rules Pt 34, r 7(6) and r 8(5). The reason for the rules is clear and was explained in the decision referred to. At the close of the plaintiff's case there may be evidence against some defendants but not against others. The court will not entertain a motion for judgment by some only of the defendants because any gaps in the plaintiff's case against those defendants may be filled when the other defendants go into evidence. In particular one or more of the defendants going into evidence may seek to exculpate themselves by inculpating defendants against whom the plaintiff had no admissible evidence at the close of his case. If the respondent would not be entitled to succeed on a no evidence point at the trial until all the evidence has been called, including that from other defendants, it is clear that there can be no such entitlement on an application by one of several defendants for summary dismissal."
It is to be noted that this principle is described as being referrable to "evidence" and where there are "gaps in the plaintiff's case". It has been subsequently applied by both the Court of Appeal (Breheny v Cairncross & 2 Ors [2002] NSWCA 69) and at first instance (see for example Australian Securities Investments Commission v Sydney Investment House Equities Pty Ltd [2007] NSWSC 434 at [12] to [13] per Barrett J). However it has its limits. In Breheny at [7] Hodgson JA noted that:
"... I would say that there may be cases where, following compliance with directions for particulars and service of evidence, it may be possible to say, before a hearing, that a case of one defendant will certainly not implicate another defendant; and thus there may be circumstances in which one defendant may be dismissed from a case before the actual hearing".
An example of the application of this approach is Boumelhem & Anor v NSW Crime Commission & Ors [2006] NSWSC 1413 at [43] where Studdert J considered the case before him to be an exception to Wickstead because his Honour was persuaded that there was "no possibility" that the defendants who were not seeking summary judgment would "incriminate" the defendant who was. Similarly in Alstom Australia Ltd v NAP Acoustics Pty Ltd [2004] NSWSC 217 Barrett J considered the case before him was close to that which was described by Hodgson JA in Breheny at [7] but ultimately concluded that summary judgment would not be granted (at [15]):
"But the fact that the time for the filing of further evidence by both the plaintiff and the first defendant, as set by the pre-trial directions has passed, cannot be taken as an absolute assurance that no such evidence [i.e. implicating the party seeking summary judgment] will be forthcoming."
In PAO & Ors v Trustees of the Roman Catholic Church for the Archdioceses of Sydney & Ors [2011] NSWSC 1216 Hoeben J granted summary judgment to one of a number of defendants on the basis that it had gone further than the position described in Wickstead by demonstrating that the evidence to fill the "gaps in the plaintiff's case" was "unlikely to be forthcoming" either from the other defendants or from any other source (at [106]). Given the strength of the findings of fact made by Hoeben J at [99] to [102] in my view, nothing turns on any difference between his Honour's phraseology ("unlikely to be forthcoming") compared with that of Barrett J in Alstom Australia, ("absolute assurance"), or that of Studdert J in Boumelhem, ("no possibility").
In this matter the only remaining potential source of evidence available to Mr Dickson to make a case of vicarious liability against Reddawn is Mr Chaffey. There does not appear to be any means by which Mr Dickson can obtain any such evidence from him prior to trial. In my view the question of whether or not summary judgment should be ordered narrows to a question as to whether or not I can be satisfied to the appropriate standard that Mr Chaffey will not give evidence that "incriminates" or implicates Reddawn. To so conclude, I would need to be satisfied to the relevant standard that at any trial he will not give evidence describing the connection between his motor vehicle and his duties, or referring to some express or implied direction or instruction he received, sufficient to result in his actions in confronting Mr Dickson being characterised as conduct undertaken within the course of his employment or incidental to it. While the case is clearly on the borderline I am not sufficiently satisfied that that will not occur. I appreciate Mr Chaffey has been interviewed by the police and given evidence in his criminal trial. However, I do not consider those versions to be necessarily inconsistent with a realistic possibility of him giving some form of "incriminating" evidence in the sense I have described.
Accordingly, so much of Reddawn's notice of motion as involves an application for summary judgment and an order striking out the statement of claim, will be dismissed.
Separate question
As I have declined to grant Reddawn summary judgment or strike out the statement of claim it is necessary to consider its alternative application that there be a separate hearing of the question of liability in advance of all other issues in the proceedings. On this issue Mr Dickson agreed with Reddawn that such an order should be made. Mr Dickson's agreement is not sufficient to enable that to occur for two reasons. First, Mr Chaffey has not had notice of the application. Before I could make any order for a separate hearing of liability he would need to be given the opportunity to be heard. I address this below. Second, given that such an order has consequences in terms of case management and court time I would still need to be persuaded that it is appropriate for it to be made.
It is common ground between Reddawn and Mr Dickson that, as a result of the altercation between Mr Dickson and Mr Chaffey, Mr Dickson sustained severe head injuries and suffers serious ongoing physical and cognitive disabilities. Reddawn's solicitor has stated that the fact that Mr Dickson sustained such injuries and disabilities are not expected to be the subject of dispute but "the extent of the plaintiff's injuries and disabilities are likely to be contested". He anticipates that, in order to determine the quantum of Mr Dickson's claim, extensive expert medical evidence will be required including "evidence from rehabilitation physicians, neuropsychologists, neurosurgeons or neurologists, forensic accountants and occupational therapists" as well as "extensive lay evidence from [Mr Dickson], his daughters and any carers on the subject of damages and evidence going through the earning of comparable employees". He estimates that a hearing involving a full ventilation of all the issues in the proceedings, could be expected to take 15 days even allowing for concurrent expert evidence. In contrast, he estimates that a hearing on the issue of liability alone can be expected to take 3 to 5 days. Both Senior Counsel who appeared before me revised that estimate to 1 to 2 days. In my opinion that seems more likely.
Both Mr Dickson and Reddawn are concerned about the cost of litigating the issues concerning quantum, because in the event that the claim against Reddawn is unsuccessful those costs may well be rendered futile. I would add that, although it is difficult to know whether Mr Chaffey will participate in any trial, it seems likely that he would not have the means to participate in any contest concerning quantum. Thus, if the result of a hearing on liability was that he alone was found liable, it seems to be very unlikely that a hearing on damages would take 15 days. There is also the possibility that, if that occurred, Mr Dickson might elect not to continue with any such assessment because he may not be satisfied that Mr Chaffey had the means to meet any judgment.
Subject to hearing any submissions that Mr Chaffey may wish to make to the contrary I propose to make an order for a separate hearing under r 28.2 of the UCPR. I am mindful of the concerns expressed about such a course in Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 at [436] per Callinan J and Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1 at 55, [168] to [170] per Kirby and Callinan JJ. However, I note that in this case, and in contrast to Perre, damage is not the "gist" of the action, and in any event the two parties before me accept that some "compensable damage" has been sustained by Mr Dickson. I also appreciate that there may be witnesses common to liability and quantum. Nevertheless, I am satisfied that, in the circumstances of this case, separating liability from quantum would facilitate the "just, quick and cheap" resolution of the proceedings especially the "cheap" component of that command (see s 56 of the Civil Procedure Act 2005 and Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7], per Einstein J).
Although there are two defendants, the case against Reddawn seems to me to be the real focus of Mr Dickson's efforts, as it carries with it a much greater likelihood of recovery. At the moment, that is a case that could not be described as strong. I see real utility in terms of saving costs for both Mr Dickson and Reddawn in conducting a separate hearing on liability. There is always the potential for appeals but, even if that occurred, both parties would then not have to spend significant time and money in preparing for a hearing on quantum without at least knowing that there was some utility in doing so.
As I have stated it is not appropriate to make an order under r 28.2 now. At the hearing of the motion it was suggested that if I was minded to order the hearing of a separate question on liability then I should publish reasons to that effect which could be provided to Mr Chaffey so that he could have the opportunity to submit to the contrary. I agree with that course.
orders
Accordingly, the orders of the Court are:
(1) Prayers 1 and 2 of the notice of motion dated 13 October 2011 be dismissed.
(2) Stand over the balance of the notice of motion, including costs, to 3 May 2012 at 9.30am before Beech-Jones J.
(3) Direct the Plaintiff on or before 24 April 2012 to use its best endeavours to serve on the First Defendant:
(i) a copy of these reasons;
(ii) a covering letter advising the First Defendant of the date the matter is next before the Court, and advising the First Defendant, that if he wishes to make any submission to the contrary of the making of an order for a separate hearing on liability, that he may do so before Beech-Jones J on that date.
(4) Direct the Plaintiff and the Second Defendant to confer as to the appropriate form of order for a separate hearing on liability.
(5) Direct the Plaintiff and the Second Defendant to, on or before 27 April 2012, file and serve either an agreed form of order for a separate hearing on liability or, failing agreement, their own forms of order.
(6) There be liberty to apply in relation to the above directions.
(7) The exhibits be returned.
Decision last updated: 16 April 2012
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