Kiperman v Highflame Pty Ltd - [2007] NSWDC 165

CITATION: Kiperman v Highflame Pty Ltd [2007] NSWDC 165
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 14, 15, 16 and 17 May 2007

JUDGMENT DATE:
26 July 2007

JURISDICTION: District Court - Civil Jurisdiction

JUDGMENT OF: Johnstone DCJ at 1

DECISION: Judgment for the plaintiff against the first and second defendants for $29,970, and against the third defendant for $2,970; Defendants to pay the plaintiff's costs, on the ordinary basis

CATCHWORDS: Assault - plaintiff punched by nightclub bouncer supplied by security company - operator and licencee of nightclub vicariously liable - Negligence - supervisor from security company failed to intervene and discipline bouncer - operator and licencee of nightclub vicariously liable - Damages separately assessed for the assault, at common law, and under the Civil Liability Act for the negligence - statutory threshold for non-economic loss not met - exemplary and aggravated damages claimed but not awarded

LEGISLATION CITED: Civil Liability Act 2002

CASES CITED: Caledonian Collieries Ltd v Speirs [1957] HCA 14 at [12]
Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41
Hollis v Vabu [2001] HCA 44
Knight v McLean [2002] NSWCA 314 at [61]
Sweeney v Boylan Nominees Pty Limited [2006] HCA 19
Thomson v Bankstown Corporation (1953) 87 CLR 619 at 630
Zorom Enterprises Pty Ltd v Zabow [2007] NSWCA 106

PARTIES:
Richard Kiperman (Plaintiff)
Highflame Pty Limited (First Defendant)
Daniel James Dixon (Second Defendant)
The Prime Protection Group Australia Pty Limited t/as Prime Protection (Third Defendant)

FILE NUMBER(S): 1259/05

COUNSEL: Ms A Healey (Plaintiff)
Mr S Finnane (First and Second Defendants)
Mr P Stockley (Third Defendant)

SOLICITORS: Brydens (Plaintiff
Deacons (First and Second Defendants)
Curwoods (Third Defendant)

JUDGMENT

Introduction

1. Mr Richard Kiperman was injured in the early hours of 18 May 2003 outside the De Ville nightclub in Double Bay. He alleged that in the course of seeking entry to the nightclub with his girlfriend, Ms Yanet Sternberg, one of the bouncers from the nightclub pushed him back, and then punched him in the face, causing him to hit his head and fall to the ground, unconscious. He brings this claim against the defendants alleging assault, or alternatively negligence.

2. The first defendant, Highflame Pty Limited was the operator of the nightclub. The second defendant, Mr Dixon, was the licensee. The third defendant was a security company hired to provide security services at the nightclub.

3. The defendants deny that a nightclub bouncer assaulted Mr Kiperman and say that if he was assaulted, it occurred some distance away from the nightclub, and he was assaulted by someone not associated with the nightclub.

4. The issues for determination as to liability are:

· Did a nightclub bouncer push, and then punch Mr Kiperman?

· If so, were any of the defendants vicariously liable for that assault?

· Was Mr Kiperman injured as a result of negligence by any defendant?

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.

Continue reading Kiperman v Highflame Pty Ltd

Details

AGLC: Kiperman v Highflame Pty Ltd [2007] NSWDC 165
Case: [2007] NSWDC 165
Decision Date: 26 July 2007

CaseChat Overview and Summary

The case of Kiperman v Highflame Pty Ltd involved a dispute between the plaintiff, who was assaulted by a bouncer at a nightclub, and the defendants, which included the nightclub operator, the nightclub licencee, and the security company that supplied the bouncer. The plaintiff claimed that the bouncer, who was an employee of the security company, assaulted him while he was at the nightclub, and that the nightclub operator and licencee, as well as the security company, were vicariously liable for the actions of their employee. The plaintiff also claimed that a supervisor from the security company failed to intervene and discipline the bouncer, and that the nightclub operator and licencee, as well as the security company, were negligent for not taking appropriate action.

The legal issues in the case included whether the nightclub operator and licencee, as well as the security company, were vicariously liable for the actions of the bouncer, and whether the nightclub operator and licencee, as well as the security company, were negligent in failing to intervene and discipline the bouncer. The court also had to determine whether the statutory threshold for non-economic loss had been met, and whether exemplary and aggravated damages should be awarded.

The court found that the nightclub operator and licencee, as well as the security company, were vicariously liable for the actions of the bouncer, as he was their employee and was acting within the scope of his employment when he assaulted the plaintiff. The court also found that the nightclub operator and licencee, as well as the security company, were negligent in failing to intervene and discipline the bouncer. The court awarded damages to the plaintiff for the assault, at common law, and for the negligence under the Civil Liability Act. The statutory threshold for non-economic loss was not met, and exemplary and aggravated damages were not awarded.

The final orders of the court were that judgment be entered for the plaintiff against the first and second defendants for $29,970, and against the third defendant for $2,970. The defendants were ordered to pay the plaintiff's costs, on the ordinary basis.

Orders

Orders of the court

Judgment for the plaintiff against the first and second defendants for $29,970, and against the third defendant for $2,970; Defendants to pay the plaintiff's costs, on the ordinary basis

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Kiperman v Highflame Pty Ltd [2007] NSWDC 165 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	14, 15, 16 and 17 May 2007
JUDGMENT DATE:	26 July 2007
JURISDICTION:	District Court - Civil Jurisdiction
JUDGMENT OF:	Johnstone DCJ at 1
DECISION:	Judgment for the plaintiff against the first and second defendants for $29,970, and against the third defendant for $2,970; Defendants to pay the plaintiff's costs, on the ordinary basis
CATCHWORDS:	Assault - plaintiff punched by nightclub bouncer supplied by security company - operator and licencee of nightclub vicariously liable - Negligence - supervisor from security company failed to intervene and discipline bouncer - operator and licencee of nightclub vicariously liable - Damages separately assessed for the assault, at common law, and under the Civil Liability Act for the negligence - statutory threshold for non-economic loss not met - exemplary and aggravated damages claimed but not awarded
LEGISLATION CITED:	Civil Liability Act 2002
CASES CITED:	Caledonian Collieries Ltd v Speirs [1957] HCA 14 at [12] Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 Hollis v Vabu [2001] HCA 44 Knight v McLean [2002] NSWCA 314 at [61] Sweeney v Boylan Nominees Pty Limited [2006] HCA 19 Thomson v Bankstown Corporation (1953) 87 CLR 619 at 630 Zorom Enterprises Pty Ltd v Zabow [2007] NSWCA 106
PARTIES:	Richard Kiperman (Plaintiff) Highflame Pty Limited (First Defendant) Daniel James Dixon (Second Defendant) The Prime Protection Group Australia Pty Limited t/as Prime Protection (Third Defendant)
FILE NUMBER(S):	1259/05
COUNSEL:	Ms A Healey (Plaintiff) Mr S Finnane (First and Second Defendants) Mr P Stockley (Third Defendant)
SOLICITORS:	Brydens (Plaintiff Deacons (First and Second Defendants) Curwoods (Third Defendant)