Sprod v Public Relations Oriented Security Pty Ltd

[2005] NSWSC 1074

Reported Decision: (2005) Aust Torts Reports 81-817

New South Wales

Supreme Court

CITATION:	Sprod v Public Relations Oriented Security Pty Ltd [2005] NSWSC 1074
HEARING DATE(S):	17/10/05, 18/10/05, 19/10/05
JUDGMENT DATE :	1 November 2005
JUDGMENT OF:	Cooper AJ at 1
DECISION:	Judgment for the defendant.

CATCHWORDS:	Vicarious liability
CASES CITED:	Briginshaw v Briginshaw 1938 60 CLR 366 Starks v RSM Security Pty Ltd & Ors 2004 NSWCA 351 Deatons Pty Ltd v Flew 1949 79 CLR 370 Darling Island v Long 1956 97 CLR 36 State of New South Wales v Lepore 2003 212 CLR 511 Gordon v Tamworth Jockey Club Inc 2003 NSWCA 82
PARTIES:	Gregory Sprod Public Relations Oriented Security Pty Ltd
FILE NUMBER(S):	SC 20455/02
COUNSEL:	Plaintiff: Mr P. Arden SC Defendant: Mr G. Watson SC
SOLICITORS:	Plaintiff: Beston Macken McManis Defendant: Shearman Lawyers

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ACTING JUSTICE COOPER

Tuesday 1 November 2005

20455/02 GREGORY SPROD v PUBLIC RELATIONS ORIENTED SECURITY PTY LTD

JUDGMENT

Introduction

1 COOPER AJ: At about 1:30 on the morning of Saturday 22 December 2001 the plaintiff was found lying unconscious with his head in a pool of blood in a laneway leading from the northern side of Great Western Highway at St Marys. Police and ambulance were called.

2 He was taken to Nepean Hospital where he was found to have a GCS of 4. A head CT revealed multiple frontal spot contusions, an extranial haematoma to the right parietal region and a slight parietal scalp swelling and haematoma. He remained in that hospital in a semi-conscious state until he had recovered sufficiently to be transferred to the Westmead Brain Injury Unit on 12 February 2002. He remained there for a period of approximately a further two months.

3 His injuries are consistent with having been brutally assaulted around the head and he is left with permanent brain damage.

4 In this action he seeks to recover damages to compensate him for those injuries from Public Relations Oriented Security Pty Ltd, a company which provided security guards, also referred to as “bouncers”, for the St Marys Band Club, also referred to as “The Band Club”.

5 In this action he alleges that his injuries were caused by employees of that company.

6 The defendant denies that its employees caused the injury and further argues that even if one or more of its employees did cause that injury it occurred in circumstances for which the company is not Liable.

The Location

7 Before going to the facts of the case it is necessary to describe the area in which the events took place details of which are set out in the plan, Exhibit A.

8 The locality with which the events of the night of 21-22 December 2001 are concerned lies along the northern side of Great Western Highway between Princess Mary Street on the west and Queen Street on the east.

9 On the western side of Princess Mary Street is a hotel then known as “The Wagon Wheel Hotel”.

10 The frontage of this block from Princess Mary Street to Queen Street is approximately 280 metres.

11 The St Marys Band Club and its associated car parks occupy the western part of this block for a distance of approximately 170 metres.

12 Adjoining the easternmost car park of the St Marys Band Club was a vacant shop and adjoining that on the east was Dave’s Midnight Pizza.

13 Approximately fifty-six metres to the east of Dave’s Midnight Pizza was an access lane leading to the rear of buildings fronting Queen Street. That was the lane within which the plaintiff was found unconscious.

14 From that lane to the corner of Queen Street was approximately thirty-two metres.

15 The evidence of the plaintiff was that he remembered going by taxi to the Wagon Wheel Hotel and playing some pool. He recalls that he was with some friends. After that his memory is a blank until he became aware of surroundings some months later.

16 The plaintiff’s brother, Bradley Collier, gave evidence that he and the plaintiff went from their home by taxi and arrived at the Wagon Wheel Hotel at about 6:30 on the evening of 21 December. He left the plaintiff at that hotel at about 10:30 or 11pm and did not see him again that night.

At Dave’s Midnight Pizza

17 The evidence then shifts to Dave’s Midnight Pizza between about 1:00 and 1:30 on the morning of 22 December 2001.

18 David Schoer was the owner and operator of that shop and had been since August 1997. Apart from Mondays, his shop was open from about 5:30pm and it remained open on a Friday night/Saturday morning until about 4:30 to 5:30am.

19 Over the years that he had operated the shop prior to December 2001 there had been a number of incidents causing trouble in the shop. He had been assaulted by patrons. A pot plant had been thrown at his head which almost knocked him unconscious.

20 He then made an arrangement with the management of St Marys Band Club that, in return for providing the uniformed staff of The Band Club and the security staff with a discount rate on pizzas and drinks, they would allow the security men to come to his shop to help him sort out problems.

21 Pursuant to this arrangement, if he wished assistance from the Band Club’s security staff he would ring the manager or receptionist of The Band Club and those persons would then send up the security staff. When asked how often this situation arose he replied at pages 91-92:-

“Every Friday night; that arrangement extended to Friday night. They would come up and stand out the front of the shop. Sometimes they would stand inside the shop because their patrons, you know, they used to have anywhere up to 1200, 1300 people in the nightclub upstairs. A lot of them, obviously not that many, but a lot of those people would come up to the pizza shop, you know, when the club had shut at 4am, so they used to send the bouncers up to stand out the front of the shop, just to make sure that there was no trouble, so, you know, to put it in perspective, yeah, every night, every Friday night they were there. As I say, occasionally there was problems there.”

22 Mr Schoer’s evidence was that the name of the security company P.R.O.S. appeared on either the shirt or the tie that the security men wore.

23 His evidence continued that on the morning of 22 December a young man, clearly the plaintiff, came into his shop and made a pest of himself. He was very drunk, generally abusive, and made extremely rude remarks to female patrons. In addition he slapped one of the patrons.

24 Mr. Schoer then made two phone calls to The Band Club seeking assistance from the security staff following which two bouncers arrived whom he knew by sight because they had attended his shop on earlier occasions. Each man was wearing bal;ck trousers and a white shirt with the identification “P.R.O.S.” on it.

25 It was Mr Schoer’s perception that it was not only the plaintiff but one or two others who were with him who were causing trouble.

26 When the bouncers entered his shop he pointed with his finger at the men who were causing the trouble and then indicated with his thumb to take them outside.

27 He heard the bouncers ask two men to leave and saying that they were not welcome in the shop. They refused to leave and the bouncers then dragged them out of the shop on to the footpath.

28 Once outside the shop one of the men caused no problems and walked away. Two of them who had caused problems in the shop were pushing and shoving and throwing their elbows at the bouncers.

29 Mr Schoer said that he saw one bouncer feign to run after them and the two men who had caused trouble in the shop then went out of his sight. Four bouncers were still at the front of his shop and a couple of them started to walk back to The Band Club. At that stage Mr Schoer thought that the event was over and so he turned round and walked back inside and continued with his work.

30 Mr Schoer gave evidence that he made the arrangement with The Band Club for assistance from the security men when he took over the pizza shop in 1997. The arrangement was made verbally with a manager or an assistant manager of the Club.

31 He described the arrangement in these terms, page 98:-

“I would supply the staff and the bouncers with a cut price meal, you know, like providing they were working at the time at the club like, you know, they were in club uniform, or whatever, in return for if there were problems in the store, if I needed help, then they would help me out, so that was the arrangement.”

32 Under cross-examination he said that the offending men were held by the security guards by the arms and pushed out of the door and once out of the door they were let go. There were four bouncers standing there and one stood a little bit back towards The Band Club. His name was Paul. At that stage there were probably two to three metres between the men who had been removed from the shop and the bouncers. He said that the offending men jogged up towards Queen Street. One of the bouncers feigned to chase him and then stopped.

33 Lisa Cannon gave evidence that on the evening of 21 December she had been at the St Marys RSL Club with Joanna Synnerdahl, Cheryl, Peter and David and had gone in Cheryl’s car at about 1:30am to the pizza shop. She, Joanna and David entered the shop whilst Peter and Cheryl remained outside. At some stage after she arrived, the plaintiff entered the shop with a friend and made a pest of himself.

34 Shortly afterwards two men whom she described as bouncers arrived. She said that she could identify them as such because they were wearing a black suit with white shirt and Dave Schoer had told her that he had called them.

35 She described them as of islander appearance, one being bigger than the other.

36 Her evidence was that the two bouncers came into the pizza place and tried to grab the plaintiff but he was shuffling away. Eventually they held him around the upper arms, walked him out onto the footpath and then turned left away from The Band Club towards the direction of Queen Street still holding on to him.

37 She did not see how far he was taken because she sat back in the shop.

38 Some time later police arrived and she and others went with them to the laneway some fifty-six metres to the east of Dave’s Midnight Pizza and saw the plaintiff lying on the ground in a pool of blood, unconscious and in a foetal position.

39 She, Joanna, Cheryl, Peter and David were asked by the police to remain so that they could be interviewed.

40 In the meantime the ambulance arrived.

41 Whilst they were waiting, the two bouncers who had been in the shop earlier came up to them and told them that they could go. She responded “Why can’t the police tell us that?” to which she received the reply, “Well they told me to tell you”. They all remained and the bouncers walked back to The Band Club.

42 She also said that at about the time that Mr Schoer had contacted The Band Club one of her friends had telephoned the police to come.

43 Peter Gregory testified that on the night of 21 December 2001 he had been at the St Marys RSL Club with Lisa Cannon, Joanna Synnerdahl, Cheryl Broderick and a man named Dave.

44 About 1am on 22 December they drove in Cheryl’s car to Dave’s Midnight Pizza. The car was parked right outside that shop.

45 Joanna, Dave and Lisa went into the shop but he remained outside with Cheryl leaning next to the car and facing the pizza shop. A short time later he saw a man (it is not in dispute that this was the plaintiff) walking up the street being rowdy. He had some friends behind him and one was with him. He saw the plaintiff who was not wearing a shirt enter the pizza shop.

46 He heard noises coming from the shop and then Joanna ran out and said that she was being abused.

47 Cheryl walked into the shop followed by Mr Gregory.

48 He saw the plaintiff yelling abuse at the girls and said to him “Listen mate, you’ve had a bit to drink. Better off to leave”.

49 Mr Gregory walked back out to the car and saw two bouncers walk up from the St Marys Band Club dressed in black trousers with white shirts and one of them had a walkie-talkie attached to his belt.

50 He described the first one as of Maori or Tongan appearance, about 120 Kg., solid, and having a small trimmed goatee beard. He was carrying the walkie-talkie radio and was the smaller of the two men.

51 The second was slightly taller than the first and was of islander appearance.

52 From his position on the footpath Mr Gregory saw the two bouncers go into the shop. He also noticed a group of bouncers dressed in black pants and shirts similar to the men who had gone into the shop, coming from The Band Club in his direction.

53 He then walked into the pizza shop to see what was going on and saw the bouncers grab the plaintiff on the shoulders. The first of the bouncers raised his elbow and swung it at the plaintiff’s head a few times and on the fourth occasion hit him with his elbow on the side of the face. The first bouncer had hold of the plaintiff and the second also grabbed him and the two of them took him out of the shop.

54 By this stage Mr Gregory was out of the shop and he saw the bouncers take the plaintiff whilst holding on to him up Great Western Highway in the direction of Queen Street. Mr Gregory was concerned as to where they were going to take him and wanted to follow. However he was stopped by Cheryl. He continued watching the two bouncers and the plaintiff and he saw them take the plaintiff up to and in to the laneway which he said was about fifty metres from the pizza shop.

55 By this time extra bouncers had turned up from the direction of the St Marys Band Club. He saw the plaintiff held by the first two bouncers walking into the laneway to which reference has already been made and the other bouncers were just “standing looking up and down the street like keeping watch”.

56 After a short time he saw the first two bouncers walk out of the laneway and head back towards the St Marys Band Club passing him. The two bouncers who had been standing up at the entrance to the laneway walked down towards the club at that stage.

57 As the first two bouncers walked past him a man wearing a blue Hawaiian shirt with flowers on it and standing about six feet away from him asked the bouncer “Oh what did you do to him?” The bouncer who had entered the pizza shop first responded “He won’t be causing any trouble tonight. He just got his head kicked in”. They then continued walking towards The Band Club followed at a distance of about ten feet by the other two bouncers.

58 Mr Gregory then went to walk towards the laneway but was stopped by Cheryl.

59 Later police arrived. Mr Gregory did not go into the laneway.

60 Mr Gregory was quite adamant that the plaintiff did not walk by himself into the laneway and that he was taken in by the first of the two bouncers.

61 Joanna Synnerdahl gave evidence that after being at the St Marys RSL Club she went with Peter Gregory, Cheryl and others to Dave’s Midnight Pizza somewhere about 1am on the morning of 22 December 2001.

62 Whilst she was there problems developed between herself and Lisa of the one part and the plaintiff of another.

63 As a result she called the police on her mobile phone.

64 She was also aware that the man who ran the pizza shop had called some bouncers who attended. They were wearing white shirts with black dress pants.

65 Her evidence was that when the bouncers came into the pizza shop she was having an argument with the plaintiff and the bouncer said, “Oh what’s going on?” She replied “I’ve just called the police, hold him outside”.

66 Her evidence continued that the two bouncers grabbed the plaintiff took him outside and she saw one of them with his right elbow “whack” him. She also saw the two bouncers grab him and walk in an easterly direction towards Queen Street.

67 No more than ten minutes later the two bouncers came back into the pizza shop and one of them said “Don’t worry about it, we just kicked his head in”.

68 Subsequently she left the shop walked in the direction of Queen Street along the Great Western Highway with Lisa Cannon and as they walked past the laneway they looked in to it and saw the plaintiff in a foetal position with his head in a pool of blood.

69 She said that the pool of blood was around his head about eighteen inches in diameter and the plaintiff was shaking. By that stage the police had arrived. Her evidence was that the police arrived no more than ten minutes after the bouncers had taken the man out of the pizza shop.

70 The only other evidence relevant to the events in question are transcripts of record of interviews conducted by police with Freddy Loau (Exhibit G) and Gerald Hoskins (Exhibit H) later on the morning of 22 December.

71 I shall deal first with the interview with Freddy Loau.

72 He said that he was employed by a company known as P.R.O.S. Security and that he has a license to work as a security officer.

73 P.R.O.S. Security was contracted to provide security services to the St Marys Band Club and he was working in that location on that night.

74 He had received a call over the two-way radio from the security guard who was working on the main door telling him that the pizza shop required assistance. He went downstairs and called his supervisor, Gerald Hoskins. The two of them then made their way to the pizza shop. On arriving there, he moved in grabbed the hand of the man who was causing the trouble (more probably than not the plaintiff) and the two of them pulled him outside. That man hit Gerald Hoskins in the chest.

75 By this stage two further security men, Geoff and Paul Heggitt, had arrived from the club.

76 Outside the shop on the footpath there was some further altercation between two men who had been removed from the shop and the security men and then the two offending men left.

77 Mr Loau said that he and his colleague walked back into the pizza shop to make sure everything was allright and Gerald said “Merry Christmas”. They then went back to the club because a call had come over their radio that there was another incident upstairs in the club.

78 He said that the last time he saw the plaintiff and his friend was when they took off up the road and went around the corner in to Queen Street.

79 He denied that he or any other person had taken the plaintiff in to the laneway and he denied that he had entered that laneway. He did return to the pizza shop when he became aware that police were there. He said that the only time that he went to the laneway was when the police had ropes across it and he stood looking down the laneway and saw the ambulance there.

80 At question fifty he was asked:-

“We’ve also been informed that the same gentleman who had, who was causing a problem at the pizza place, is the same person who was found laying in the laneway.
A. Is the same person.

Q 51. Is identical person.
A. Well, basically, I don’t know. Once, once he went around the corner, that was it. We didn’t go nowhere near him, then there was, like I said, we turned around and made our way back to the pizza shop. Gerald popped his head in and said Merry Christmas, and that was it. And we headed back, and now, like I stated before, there was a whole bunch of Lebanese guys in the, in the alleyway.
Q52. Mm.
A. Telling the guy to fuck off home, telling him where to go. And then basically, then what happened, we heard that when we were walking past them. Now, the only time, when I was walking past them I just turned around and looked to those Lebanese guys, and I just kept walking on. And Paul Heggitt was on the left hand side, just standing there. Then I turned around and said “Come on, lets go”, and then we just made our way back to the club.”

81 He went on to agree that he turned to his right to look into the laneway as he was walking past to see “those Lebanese guys”.

82 He also denied that either he or Gerald had said to a member of the public anything about a person getting his head kicked in.

83 At questions 83 and following Mr Loau said that during his training as a security guard he was taught manoeuvres of self-defence which included wrist locks and finger locks and how to restrain someone on the ground. He could not recall having been trained in a manoeuvre to place someone on the ground and added that he had never had to do it. He felt that basically he would start with a wrist lock.

84 He had been in the security industry for about two years although he was mainly in a supervisory type of work.

85 At question 129 he agreed he used force to remove the plaintiff from the pizza shop but said that it was “reasonable force”.

86 The answers Mr Loau gave to the questions in the record of interview are rather rambling and difficult to follow. However there are answers which are inconsistent.

87 At one stage he said that the plaintiff and his friend went in an easterly direction up the Great Western Highway and turned into Queen Street. This means that the plaintiff would have passed the subject laneway which is some thirty-two metres west of the corner of Queen Street.

88 However he also said that as he was returning from the area of the corner of Queen Street towards the club, in a westerly direction, he passed the laneway, looked in and saw the Lebanese men apparently with the plaintiff.

89 I now pass to the transcript of the record of interview of Gerald Hoskins, Exhibit H.

90 He was a licensed security guard and had had that licence for about a year.

91 He worked for a company called Public Relations Oriented Security, the business manager of which was Geoff Appleby and the executive officer was Mark Hooker.

92 Fred Loau was also an employee of that company.

93 Mr Hoskins supervised the nightclub, “Colours”, which is in the upstairs section of the St Marys Band Club building.

94 Mr Hoskins said that he intercepted a radio call in which Fred Loau asked him to meet him up at the pizza shop where there was “an incident going on”. He went down on to the footpath, met Freddy Loau and they made their way towards Dave’s Midnight Pizza shop.

95 He entered the shop first with Fred behind him. He saw two men arguing with another man. One was aboriginal and as Mr Hoskins is also aboriginal he focused on him.

96 After some argument he and Fred took the men outside with Mr Hoskins focusing on the aboriginal man. The men were pushed up in the direction of Queen Street. Eventually they ran off around the corner of Queen Street to the left heading towards the railway station.

97 After that, he and Loau turned round and made their way back towards the Band Club. As they were doing so, he saw people in the laneway. They continued walking westerly. He entered the pizza shop, wished everybody “Merry Christmas” and continued back to The Band Club.

98 He denied striking anybody and said that his whole focus was on the aboriginal lad. He denied entering the laneway at any time. He denied seeing Freddy Loau go into that laneway. He also denied saying or hearing words to the effect that someone had got his head kicked in.

99 It should be mentioned here that no criminal charges have been laid against any person in connection with the injuries sustained by the plaintiff on the morning of 22 December 2001.

Was the Plaintiff assaulted?

100 The first question to determine is how did the plaintiff sustain the severe injuries to his head which are described earlier and which have left him with permanent brain damage?

101 There is no evidence consistent with, or even suggesting that, the plaintiff having sustained these injuries by any accident. Once he was outside of Dave’s Midnight Pizza shop he had no such injuries. Those injuries were not discovered until he was found lying on the ground in the laneway with his head in a pool of blood.

102 The evidence comfortably satisfies me on the probabilities that the injuries to the plaintiff were sustained as a result of a vicious and brutal assault by a person or persons.

Who assaulted the Plaintiff?

103 The next question to determine is has the plaintiff satisfied the court on the balance of probabilities that the assault upon him was inflicted by a security guard being either Mr Loau or Mr Hoskins?

104 Having regard to the nature and seriousness of the allegations sought to be proved against these men the standard of proof is the standard of probabilities and the degree of satisfaction must be to that extent enunciated by the High Court in Briginshaw v Briginshaw 1938 60 CLR 366.

105 There is no evidence from any person who actually saw either of the security guards assault the plaintiff in the laneway.

106 In their records of interview the two security guards deny assaulting the plaintiff in the laneway or at any other place.

107 Up to ten minutes elapsed between the time the plaintiff was removed from the pizza shop and the time that Lisa Cannon saw him lying in the laneway.

108 The only witness who implicates the security guards in the assault of the plaintiff is Mr Peter Gregory. Of the witnesses called he was the only one who was standing on the footpath and was therefore in a position to see what had occurred. His evidence was that the two security guards held onto the plaintiff from the time that they left the pizza shop, walked him up towards the laneway and then into the laneway. Once in the laneway two further security guards were standing at the entrance to the laneway looking around. The inference is that they were keeping watch to protect their colleagues from discovery whilst those colleagues were inflicting the assault.

109 His evidence is that after the two left the laneway, the two remaining security guards who had stood at the entrance followed them back towards The Band Club. Furthermore on their way back towards The Band Club one or both of the two men who had entered the laneway used words to the effect that the plaintiff had his kicked in and would not give further trouble.

110 Not more than ten minutes later the plaintiff was found unconscious in that same laneway.

111 Notwithstanding the denials of Mr Loau and Mr Hoskins there are two pieces of evidence which taken either separately or together comfortably satisfy me to the higher standard stated in Briginshaw’s case that one or both of these security guards did inflict the assault upon the plaintiff.

112 In the first place I found Mr Gregory to be a most impressive witness. His evidence was not challenged. I accept his evidence that the plaintiff was taken into that laneway by the two security guards. If the plaintiff had gone into that laneway voluntarily, there was no reason for the two security guards to have entered it. I am satisfied that he entered that laneway because he was taken there by the two security guards under restraint.

113 The second piece of evidence arises in the transcripts of the records of interview of Mr Loau and Mr Hoskins, Exhibits G and H.

114 They both said that the plaintiff went in an easterly direction along the footpath of Great Western Highway and turned left into Queen Street.

115 Both of the security guards say that they then walked back towards The Band Club. Mr Loau in his record of interview said that as he passed the laneway he looked to his right and saw the plaintiff there in the company of a number of Lebanese men apparently arguing. If this is correct, the plaintiff had, in some unexplained manner, moved from Queen Street and 32 metres along The Great Western Highway without being seen by Mr Loau or Mr Hoskins who, at that same time were in that very location.

116 Mr Hoskins said that he looked into the laneway and saw a number of Lebanese men there.

117 I am comfortably satisfied that these two men, particularly Mr Loau, fabricated the story of the plaintiff being in the laneway with Lebanese men to deflect suspicion from him.

118 Accordingly I am satisfied me quite comfortably that the evidence of Mr Gregory is to be accepted and that Mr. Loau and/or Mr Hoskins did perpetrate the assault upon the plaintiff.

Is The Defendant Liable Because of its Personal Negligence?

119 The next question to determine is is the defendant liable in law for these assaults perpetrated by these men upon the plaintiff.

120 At this stage it is convenient to consider the way in which the plaintiff has framed his case against the defendant in the Further Amended Statement of Claim filed by leave on 18 October 2005.

121 The cause of action against the defendant is in negligence and not in assault.

122 The plaintiff puts his case on two bases. First there is the personal liability in negligence of the defendant and secondly he alleges that the defendant as employer of the security personnel is vicariously liable for the assault.

123 The particulars of personal negligence alleged against the defendant in the Statement of Claim are:-

(a) Failing to provide the plaintiff with a safe entertainment environment.

(b) Failing to ensure that their employees were properly trained and supervised.

(c) Failing to ensure that their employees did not assault, batter and/or ill treat patrons or prospective patrons of the licensed premises including the plaintiff in the circumstances.

(d) Failing to ensure that their employees were properly trained and supervised so as to ensure that through their physical acts they did not cause harm to patrons or prospective patrons of the licensed premises including the plaintiff in the circumstances.

(e) Failing to ensure that their employees were instructed not to physically handle patrons or prospective patrons of the licensed premises including the plaintiff.

(f) Failing to ensure the plaintiff’s safety in circumstances where the defendant ought to have foreseen the possibility that their employees may through their physical actions cause injury to patrons or prospective patrons of the licensed premises including the plaintiff.

(g) Failing to warn the plaintiff of the dangers of being in the presence of their employees.

(h) Causing, permitting and allowing the servants of the defendant to attend upon the premises of Dave’s Midnight Pizza for the purpose of maintaining order and/or ejecting persons when called upon to do so by the manager or staff of Dave’s Midnight Pizza.

(i) Failing to ensure that their employees did not assault, batter and/or ill treat persons on or about the premises of Dave’s Midnight Pizza including the plaintiff in the circumstances.
(j) Failing to ensure the plaintiff’s safety in the circumstances where the defendant ought to have foreseen the possibility their employees may through their physical actions cause injuries to persons on or about the premises of Dave’s Midnight Pizza including the plaintiff in the circumstances.

124 Particular (a) appears to be irrelevant to the circumstances of this case. It did not arise out of any entertainment environment. The evidence appearing in the records of interview is that each of the security officers held the appropriate license and had been given training that they were to use force only as a last resort and when force was used it must not be more than what was reasonable in the circumstances. Furthermore, the supervisors on duty at The Band Club on that night were people who had been properly trained and held the appropriate licenses. Accordingly I am satisfied that the employees of the defendant were properly trained and supervised.

125 The same remarks apply to particulars (b), (d) and (e).

126 As for paragraph (c) the duty of care upon the defendant was not to ensure that employees did not assault or ill treat patrons. The duty was to take reasonable care that its employees did not so assault patrons. I am satisfied on the evidence that the defendant did take such reasonable care by ensuring that its employees were duly licensed and had received the appropriate instructions referred to above.

127 As to paragraph (f) I would hold that the duty upon the defendant was not to ensure the plaintiff’s safety but merely to take reasonable care to ensure his safety by ensuring that its employees were appropriately licensed and instructed. This the defendant had done. The injuries to the plaintiff here were caused by employees disobeying the instructions which they had been given.

128 As to paragraph (g) this is irrelevant under the circumstances. I am satisfied that the presence of the plaintiff with the two security officers in the laneway was not a voluntary act on his part but was caused involuntarily by the actions of the security guards.

129 As to paragraph (h) the evidence does not satisfy me that the permitting and allowing of the servants of the defendant to attend upon the premises of Dave’s Midnight Pizza for the purpose of maintaining order there was in any way a breach of its duty of care. In any event it did not materially cause or contribute to the plaintiff’s injuries. Those injuries were caused and materially contributed by the actions of the two security guards in taking the plaintiff into the laneway and assaulting him there in a manner contrary to instructions they had been given.

130 As to paragraph (i) I would hold that there is no duty of care upon the defendant to ensure that the employees did not assault the plaintiff in the circumstances. The duty of care is to take reasonable care that its employees did not assault the plaintiff. They took reasonable care by ensuring that the employees held the appropriate license and were given the appropriate instructions described earlier.

131 As to paragraph (j) I would hold that there is no duty upon the defendant to ensure the plaintiff’s safety in the circumstances set out in that paragraph. The duty is to take reasonable care. That reasonable care was provided by ensuring that the employees were duly licensed and properly instructed in the matters set out above. Furthermore, the injuries to the plaintiff were caused by those security guards going outside of their instructions in order to assault the plaintiff in the laneway.

132 For all of these reasons I would hold that the plaintiff has failed to satisfy me that the defendant was in breach of any of its personal duties of care to him.

Is The Defendant Vicariously Liable for the Acts of Its Employees?

133 This brings us to paragraph 7B of the Further Amended Statement of Claim which is in these terms:-

“The defendant as employer of the security personnel is vicariously liable for such assault:

Particulars of Vicariously Liability

(a) The assailant security officers were acting within their ostensible authority and under the supervision of the defendant.

(b) The assailant security officers were acting in the interests of the defendant.”

134 On behalf of the defendant it was submitted that the duties of its employees in their capacity as employees of the defendant began and ended at keeping control within the precincts of the St Marys Band Club. The defendant neither authorised nor permitted nor derived any benefit from its employees exercising control or security duties at Dave’s Midnight Pizza.

135 Consequently, whatever the employees did outside of The Band Club and within the premises of Dave’s Midnight Pizza was not in the course of their employment. The submission continues that the arrangements made between Mr Schoer regarding security at his premises were made, not with the defendant but with the manager or assistant manager of The Band Club. There is no evidence that the defendant was even aware of such arrangements. On top of this, the calls for assistance were not made to employees of the defendant it was made to a member of the staff of The Band Club who passed on the message to employees of the defendant.

136 I accept the evidence of Mr Schoer that he made these arrangements with The Band Club shortly after he took over the shop in August 1997. Furthermore the transcript of the record of interview of Mr Hoskins indicates that for the two years he had worked at The Band Club this arrangement had been in force.

137 The evidence therefore satisfies me on the probabilities that the defendant was by reason of its longevity well aware of the arrangement to provide security at Dave’s Midnight Pizza and acquiesced in that arrangement. Furthermore the defendant received a benefit from this arrangement in that its employees received pizzas and drinks at a reduced rate which promoted employee satisfaction.

138 I do not mean to suggest that every arrangement which promotes employee satisfaction constitutes a benefit to the employer. Amongst other things, the arrangement must not be inconsistent with the terms and scope of the employment and also it must not be unlawful. In this case it is consistent with the terms and scope of the employment of the security guards by the defendant that the employees have meal breaks during which they may purchase food and drinks. The purchase of those items at a reduced rate is not unlawful.

139 I therefore reject this submission.

140 The submissions of the plaintiff may be summarised thus.

141 The activity of the security guards in removing the plaintiff from the shop was something which was within the course of their employment. In addition they were entitled to use reasonable force to see that he did not go back into the shop and cause further problems. Their conduct in escorting him up the roadway and into the laneway was part of their employment which required them to subdue him. In the course of subduing him within the laneway they were doing what they were employed to do but they used a wrong method of so doing. Consequently the assault upon the plaintiff was done in the course of employment.

142 In support of this submission the plaintiff relies upon the dicta of Beazley JA in Starks v RSM Security Pty Ltd & Ors 2004 NSWCA 351 appearing at paragraphs 12 to 19 inclusive.

143 As against this, the defendant submits that the conduct of the employees in taking the plaintiff into the laneway and then assaulting him was a criminal act in no way connected with what he was employed to do by the defendant.

144 The evidence of Joanna Synnerdahl is that she told at least one of the security guards that she had just called the police and that they should hold the plaintiff outside (page 84). It would have been within the course of the employment of the security guards to have taken the plaintiff outside and to have held him there pending the arrival of police. It would also have been in the course of their employment if they had escorted him, using no more force than was reasonable necessary up to the police station which was near the corner of Queen Street and Great Western Highway.

145 However it was not in the course of their employment, in my view, to turn left into that lane with him and there to inflict upon him a brutal and vicious assault. That brutal and vicious assault was not for the purpose of subduing him. It was so severe and unnecessary that it was motivated by the blood lust of the security officers involved. I would therefore hold that the assault upon the plaintiff by the security guards was not done in the course of their employment but was an independent “frolic of their own”.

146 In the case of Deatons Pty Ltd v Flew 1949 79 CLR 370 a bar maid had thrown a glass of beer into the face of the plaintiff causing him injury.

147 At pages 381 to 382 Dixon CJ said:-

“It was an act of passion and resentment done neither in furtherance of the masters interest nor under his express or implied authority nor as an incident to or in consequence of anything the bar maid was employed to do.”

148 This description aptly fits the conduct of the two security officers here. Theirs was an act of passion and violence done neither in furtherance of their employer’s interests nor under its express or implied authority nor as an incident to or in consequence of anything they were employed to do.

149 The defendant submitted that, in general, criminal conduct on the part of an employee is conduct for which the employer cannot be vicariously liable.

150 In the case of Darling Island v Long 1956 97 CLR 36 Kitto J gives support to this proposition at page 64 as follows:-

“The old action of trespass was confined to instances of direct application of force. An indirect application of force would support only an action of trespass on the case. If a servant committed an act of force against a stranger, he was, of course, liable to the stranger in trespass. But, subject to a qualification which will be mentioned, the master was not so liable, even though the servant was acting at the time in the course of his employment. The master was liable in case only. The maxim “ qui facit per alium facit per se ” renders the master liable for all the negligent acts of the servant in the course of his employment, but that liability does not make the direct act of the servant the direct act of the master. Trespass will not lie against him, case will, in effect, for employing a careless servant, but not trespass, unless the act was done by his command, that is, unless either the particular act which constitutes the trespass is ordered to be done by the principal, or some act which comprises it, or some act which leaves by a physical necessity to the act complained of.”

151 In my view this passage is not inconsistent with the more modern dicta which express similar views although in different words.

152 The degree of violence inflicted upon the plaintiff and the gravity of the criminal acts are relevant as to whether those acts were within the course of employment.

153 In the case of State of New South Wales v Lepore 2003 212 CLR 511 Gleeson CJ at paragraph 54 says:-

“Where acts of physical violence are concerned, the nature and seriousness of the criminal act may be relevant to a judgment as to whether it is to be regarded as a personal, independent act of the perpetrator, or whether it is within the scope of employment. A security guard at business premises who removes a person with unnecessary force may be acting in the course of employment.”

154 In the present case the injuries to the plaintiff were not inflicted in the course of removing him from the business premises. They were inflicted some metres away in a laneway out of sight of the public and the force and violence used went far beyond reasonable force to remove him or keep him away from those premises.

155 In the case of Lepore Gleeson CJ at paragraph 42 says:-

“It is clear that if a wrongful act of an employee has been authorised by the employer, the employer will be liable. The difficulty relates to unauthorised acts. The best known formulation of the test to be applied is that in Salmond, Law of Torts, in the first edition in 1907, and in later editions. An employer is liable even for unauthorised acts if they are so connected with authorised acts that they may be regarded as modes…although improper modes…of doing them, but the employer is not responsible if the unauthorised and wrongful act is not so connected with the authorised act as to be a mode of doing it, but an independent act.”

156 The extent of vicarious liability has been considered in a number of recent cases many of which are referred to in Starks v RSM Pty Ltd 2004 NSWCA 351 and Gordon v Tamworth Jockey Club Inc 2003 NSWCA 82.

157 It is not necessary to quote from those cases here. Suffice to say that having considered them I am comfortably satisfied that the conduct of the security guards in so severely assaulting the plaintiff was far outside of their scope of employment. Their scope of employment ended by either restraining the plaintiff, using reasonable force, until the arrival of the police or taking him to the police station, again using reasonable force, or encouraging him, as they say they did in their records of interview, to go away.

158 The conduct of taking him into the lane and viciously assaulting him about the head is not connected with any authorised method of doing their job. It was clearly an independent act. The only connection between the scope of their employment and the assault is that it put them in the location and afforded them the opportunity to carry out their independent act.

159 The upshot is that the plaintiff has failed to satisfy the court that the assault upon him was brought about by conduct for which the present defendant bears any legal responsibility.

160 There will therefore be judgment for the defendant.

161 I invite submissions as to costs.

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