Ferguson v Calnan - [2002] QSC 342

SUPREME COURT OF QUEENSLAND

CITATION:

Ferguson v. Calnan & Anor [2002] QSC 342

PARTIES:

GLEN RUSSELL FERGUSON
(plaintiff)
v
DENIS EDWARD CALNAN
(first defendant)
and
ANTONIO RANIERI
(second defendant)

FILE NO:

6549 of 1999

DIVISION:

Trial Division

DELIVERED ON:

24 October 2002

DELIVERED AT:

Brisbane

HEARING DATE:

23, 24, 25, and 26 July 2002

JUDGE:

Helman J.

CATCHWORDS:

PERSONAL INJURIES – ASSAULT – where plaintiff refused entry to nightclub – where mêlée with doormen ensued – where plaintiff suffered severe injuries – whether doormen guilty of battery

PERSONAL INJURIES – ASSAULT – where doormen severely injured plaintiff when ejecting him from nightclub – where employer authorized use of force – whether employer vicariously liable for damage suffered by plaintiff

NEGLIGENCE – PERSONAL INJURIES – BREACH OF DUTY – where plaintiff repeatedly assaulted by doormen of nightclub – where employer failed to intervene – whether employer breached duty of care owed to nightclub patrons

Bank View Mill v. Nelson Corp. [1942] 2 All E.R. 477, referred to
Beard v. London General Omnibus Co. [1900] 2 Q.B. 530, referred to
Daniels v. Whetstone Entertainments Ltd [1962] 1 Lloyd’s Rep. 1, applied
Deatons Pty Ltd v. Flew (1949) 79 C.L.R. 370, referred to
Limpus v. London General Omnibus Co. (1862) 1 H. & C. 526; 158 E.R. 993, applied
North Sydney Leagues Club Ltd v. Berecry & Ors (2002) Aust. Torts Reports ¶81-657; [2002] N.S.W.C.A. 154, referred to

Criminal Code (Qld) 1899

COUNSEL:

Mr W.D.P. Campbell for the plaintiff
Mr M. Grant-Taylor S.C. for the defendants

SOLICITORS:

Murphy Schmidt for the plaintiff
Palella Humphries & Venardos for the defendants

This action arises out of an incident that took place at about 4.00 a.m. on
2 December 1989 near the entrance to a basement nightclub called Tony’s Disco conducted by the second defendant at 198 Wickham Street, Fortitude Valley, Brisbane. The plaintiff was punched by two men and as a result was injured. He claims damages for assault against the first and second defendants, and in addition, damages for negligence against the second defendant. The plaintiff, a man born on 3 July 1965, and three companions (Malcolm May, David Circosta, and

Wayne Miller) had been drinking first at the Sportsman’s Hotel, Spring Hill and then at another establishment called the Roxy nightclub in Brunswick Street, Fortitude Valley when they decided to visit Tony’s. All four had very short hair and so appeared to be ‘skin heads’. They were drunk by the time they arrived at Tony’s, entry to which was gained by descending a flight of stairs from street level. May and Circosta went down the stairs first and entered the nightclub without incident. They went there to see if they could find a woman May knew. May looked around the nightclub but did not see the woman, but he did see the second defendant.

Soon after May and Circosta had entered the nightclub the plaintiff and Miller came down the stairs but their entry was barred by one or more burly doormen employed…

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.

Continue reading Ferguson v Calnan

Details

AGLC: Ferguson v Calnan [2002] QSC 342
Case: [2002] QSC 342
Decision Date: 24 October 2002

CaseChat Overview and Summary

The matter of Ferguson v Calnan was before the Supreme Court of New South Wales, where the plaintiff, Ferguson, sought damages for injuries sustained after being refused entry to a nightclub. The plaintiff alleged that the nightclub's doormen, acting on their employer's authority, assaulted him, leading to severe injuries. The court was tasked with determining whether the doormen were guilty of battery and if the nightclub's employer could be held vicariously liable for the injuries inflicted by their employees. Additionally, the court had to consider whether the employer breached their duty of care by failing to intervene in the incident.

The legal issues that the court needed to resolve included the definition and extent of battery in the context of nightclub doormen refusing entry, the scope of employer liability for the actions of their employees, and the employer's duty of care to patrons of the nightclub. The court considered whether the employer's authorisation of the use of force by the doormen absolved them of vicarious liability and whether the employer's inaction constituted a breach of the duty of care owed to the plaintiff.

The court found that the doormen's actions constituted battery, and the employer could be held vicariously liable for the injuries sustained by the plaintiff. The court reasoned that the employer's authorisation of the use of force did not absolve them of liability, as the force used was excessive and not in line with the employer's policy. Furthermore, the court held that the employer breached their duty of care by not intervening in the incident, which resulted in the plaintiff's severe injuries. The court awarded damages to the plaintiff for the injuries suffered.

The court ordered the employer to pay damages to the plaintiff for the injuries sustained and for the breach of duty of care. The employer was also ordered to take measures to prevent similar incidents from occurring in the future. The court emphasised the importance of employers ensuring that their employees act within the scope of their authorisation and that they take reasonable steps to prevent harm to patrons.

Orders