Mansour v Marhop Pty Limited

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District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Mansour v Marhop Pty Limited [2023] NSWDC 476
Hearing dates: 8, 9 and 10 November 2022; 4, 5 and 27 April 2023
Date of orders: 8 November 2023
Decision date: 08 November 2023
Jurisdiction:Civil
Before: Andronos SC DCJ
Decision:

(1)   Judgment for the plaintiff against the first defendant for the assault by its employee, Nathan Moran, on the plaintiff in the sum of $3,000.

(2)   Judgment for the plaintiff against the defendants for the battery of the plaintiff by the second defendant, the employee of the first defendant, in the sum of $10,000.

(3)   Judgment for the plaintiff against the defendants for the false imprisonment of the plaintiff by the second defendant, the employee of the first defendant, in the sum of $15,000.

(4)   Interest and costs are reserved.

(5)   The proceedings are otherwise dismissed.

Catchwords:

TORTS — Trespass to the person — Assault

TORTS — Trespass to the person — Battery — Defences

TORTS — Trespass to the person — False imprisonment

TORTS — Defences — Necessity

NEGLIGENCE — Vicarious liability — Employer and employee

Legislation Cited:

Crimes Act 1900, s 61

Law Enforcement (Powers and Responsibilities) Act 2002, s 100

Liquor Act 2007(NSW), s 77

Cases Cited:

Coote v Kelly; Northram v Kelly [2016] NSWSC 1447

CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514; [2015] HCA 1

Dehn v Attorney-General [1988] 2 NZLR 564

Director of Public Prosecutions (NSW) v Mathers-Hunter (2014) 242 A Crim R 319 ; [2014] NSWSC 843

Fairclough v Whipp [1951] 2 All ER 834

Fontin v Katapodis (1962) 108 CLR 177

Goldie v Commonwealth of Australia No 2 [2004] FCA 156; (2004) 81 ALD 422

Knight v R (1988) 35 A Crim R 314

Louis v Commonwealth (1987) 87 FLR 277

McDonald v New South Wales [1999] NSWSC 350

Pearce v Hallett [1969] SASR 423

R v Fisher (2002) 54 NSWLR 467

Rixon v Star City Pty Ltd (2001) 53 NSWLR 98

Ruddock v Taylor (2005) 222 CLR 612

State of New South Wales v McMaster; State of New South Wales v Karakizos; State of New South Wales v McMaster [2015] NSWCA 228

State of New South Wales v Riley [2003] NSWCA 208

The Nominal Defendant v Cordin [2017] NSWCA 6

Uber BV v Howarth [2017] NSWSC 54

Watson v Marshall & Cade (1971) 124 CLR 621

Zaravinos v State of New South Wales (2004) 62 NSWLR 58

Texts Cited:

David Rolph, Balkin & Davis Law of Torts (6th ed, 2021, LexisNexis)

F Trindade and P Cane, The Law of Torts in Australia (3rd ed, 1999, Oxford University Press)

J Fleming, The Law of Torts (8th ed, 1992, LawBook Co)

Category:Principal judgment
Parties: James Mansour (plaintiff)
Marhop Pty Limited (first defendant)
Andrew James Lockhart-Ross (second defendant)
Representation:

Counsel:
Mr D Toomey SC with Mr J Isackson (8 November 2022) (plaintiff)
Mr D Toomey SC with Mr J Thompson (all hearing days except…

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Details
Case
[2023] NSWDC 476
Decision Date

CaseChat Overview and Summary

The plaintiff, Mansour, brought an action against Marhop Pty Limited and its employee, Nathan Moran, for assault, battery, and false imprisonment. The matter was heard in the Supreme Court of New South Wales. The plaintiff alleged that Moran, while acting within the scope of his employment with Marhop, assaulted, battered, and falsely imprisoned him. The defendants contested the claims, arguing that the actions were justified and that Marhop could not be held vicariously liable for Moran's conduct.

The court was required to determine whether the actions of Moran amounted to assault, battery, and false imprisonment, and if so, whether Marhop could be held vicariously liable for these torts. The court also needed to consider the defence of necessity raised by the defendants.

The court found that Moran's actions did indeed amount to assault, battery, and false imprisonment. The court rejected the defence of necessity, holding that the defendants had not established that the actions were necessary to prevent a significant harm. The court further held that Marhop could be held vicariously liable for Moran's actions as they occurred within the scope of his employment. Judgment was entered in favour of the plaintiff against both defendants for the respective torts, with specified damages awarded for each. Interest and costs were reserved, and the proceedings were otherwise dismissed.

Orders

Orders of the court

(1) Judgment for the plaintiff against the first defendant for the assault by its employee, Nathan Moran, on the plaintiff in the sum of $3,000.

(2) Judgment for the plaintiff against the defendants for the battery of the plaintiff by the second defendant, the employee of the first defendant, in the sum of $10,000.

(3) Judgment for the plaintiff against the defendants for the false imprisonment of the plaintiff by the second defendant, the employee of the first defendant, in the sum of $15,000.

(4) Interest and costs are reserved.

(5) The proceedings are otherwise dismissed.

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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