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

1. 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.

2. The security guard was not employed by the first respondent; he was employed by a security company, Checkmate Security International Pty Ltd ("Checkmate").

3. 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.

4. 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.

5. 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.

6. 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.

7. 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