Julia Day v Ocean Beach Hotel Shellharbour Pty Ltd - [2014] HCASL 77

JULIA DAY
v
OCEAN BEACH HOTEL SHELLHARBOUR PTY LTD & ANOR
[2014] HCASL 77
S165/2013

The applicant was drinking at licensed premises occupied by the first respondent. The second respondent was the licensee of the premises. The duty manager asked a security guard to remove the applicant. The security guard spoke to the applicant while she was seated on a stool. He then went behind the applicant and pulled the stool from under her, causing her to fall to the floor.
The security guard was not employed by the first respondent; he was employed by a security company, Checkmate Security International Pty Ltd ("Checkmate").
The applicant sued the first and second respondents and Checkmate in the District Court of New South Wales claiming damages for assault. The primary judge (Judge Cogswell) gave judgment for the applicant against Checkmate for $10,000 (being general damages of $2,500, aggravated damages of $2,500 and exemplary damages of $5,000) and judgment for the occupier of the hotel and its licensee (the first and second respondents) against the applicant.
Checkmate was deregistered after the evidence in the trial had closed but before addresses were completed. It is not a party to the application to this Court.
The applicant appealed to the Court of Appeal of the Supreme Court of New South Wales (Meagher, Emmett and Leeming JJA) against the judgment entered against her in favour of the first and second respondents. She alleged that they were (or one of them was) vicariously liable for the assault by the security guard who was employed by an independent contractor (Checkmate) retained by the hotel to provide security services. The Court of Appeal dismissed the appeal.
There is no reason to doubt the correctness of the conclusion reached by the Court of Appeal. That conclusion depended upon the application of established principles to the particular facts of the case. No question about what the applicant referred to as "dual vicarious liability" would fall for consideration if special leave were to be granted. An appeal to this Court would enjoy insufficient prospects of success to warrant a grant of special leave.
Pursuant to r 41.11.1 of the High Court Rules 2004 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

K.M. Hayne
2 April 2014 S.M. Crennan

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: [2014] HCASL 77
Decision Date

CaseChat Overview and Summary

In this matter, Julia Day, the applicant, brought an action against Ocean Beach Hotel Shellharbour Pty Ltd and its licensee, the second respondent, as well as Checkmate Security International Pty Ltd, following an incident where the applicant was injured at the hotel premises. The applicant was drinking at the hotel when a security guard, employed by Checkmate, removed her stool from underneath her, causing her to fall. The applicant sued for damages claiming assault against all three parties. The District Court found in favour of the applicant against Checkmate, awarding damages of $10,000, but dismissed the claim against the hotel and its licensee. The applicant then appealed to the Court of Appeal of the Supreme Court of New South Wales, which dismissed the appeal.

The central legal issue in this case was whether the hotel and its licensee were vicariously liable for the actions of the security guard, employed by Checkmate, who caused the applicant's injuries. The applicant argued that the hotel and its licensee were vicariously liable for the assault, as the security guard was acting within the scope of his employment by Checkmate, which was retained by the hotel to provide security services. The Court of Appeal considered the established principles of vicarious liability and determined that the hotel and its licensee were not vicariously liable for the actions of the security guard.

The Court of Appeal found that the hotel and its licensee were not vicariously liable for the actions of the security guard, as the security guard was employed by an independent contractor, Checkmate, and not directly by the hotel. The court applied established principles of vicarious liability to the facts of the case and found that the hotel and its licensee were not liable for the actions of the security guard. The Court of Appeal concluded that the appeal had insufficient prospects of success to warrant a grant of special leave to appeal to the High Court.

The High Court dismissed the application for special leave to appeal, with the court finding that there was no reason to doubt the correctness of the conclusion reached by the Court of Appeal. The High Court further noted that the appeal did not raise any questions about "dual vicarious liability" that would warrant consideration if special leave were to be granted. Pursuant to the relevant rule, the Registrar was directed to draw up, sign, and seal an order dismissing the application with costs.

Orders