Reported Decision:
(2004) Aust Torts Reports 81-763
Court of Appeal
CITATION: STARKS v. RSM SECURITY PTY. LTD. & ORS. [2004] NSWCA 351 HEARING DATE(S): 18 August 2004 JUDGMENT DATE:
28 September 2004JUDGMENT OF: Sheller JA at 1; Beazley JA at 2; Grove J at 47 DECISION: 1. Appeal allowed in part and dismissed in part.; 2. Set aside verdict for the second defendant (first respondent).; 3. Verdict for the plaintiff as against the second defendant, judgment accordingly.; 4. Verdict for the third and fourth defendants (second and third respondents) affirmed.; 5. Set aside the costs order below in favour of the respondents.; 6. First respondent to pay appellant's costs of the appeal and of the hearing at first instance.; 7. The second and third respondents to bear their own costs of the appeal and in the Court below, except to the extent that they separately incurred costs in the preparation of the case at first instance and on the appeal that were not incurred in common with the costs incurred by the first respondent. The appellant is to pay any such separately incurred costs. CATCHWORDS: TORT - Vicarious liability of employer - Circumstances in which an employer can be vicariously liable for an unauthorised and illegal act of its employee - Employer not liable for a wrongful act of an employee committed "on a frolic of his own" - TORT - Vicarious liability for acts of an independent contractor - the principal exercising control over independent contractor independent contractor acting as "representative" of the principal. - STATUTORY CONSTRUCTION - Liquor Act 1982 - Statutory obligation imposed upon licensee - Non-delegability of obligation under Act does not render it non-delegable for the purposes of tort law. - STATUTORY CONSTRUCTION - Liquor Act 1982, s.103 - Use of excessive force in tasks authorised by section - Section has nothing to say about liability of a licensee for use of excessive force by a third party not directly employed by it. LEGISLATION CITED: Liquor Act 1982 (NSW)
Supreme Court Act 1970 (NSW)CASES CITED: Canadian Pacific Railways Co v. Lockhart (1942) AC 591
Colonial Mutual Life Assurance Society Limited v. Producers and Citizens Co-Operative Assurance Co of Australia (1931) 46 CLR 41
Deatons Pty. Limited v. Flew (1949) 79 CLR 370
Gee v. NWQ Management Pty. Limited & Ors. [2002] NSWCA 77
Hollis v. Vabu Pty. Limited (2001) 207 CLR 21
Morris v. C.W. Martin & Sons Limited [1966] 1 QB 716
North Sydney Leagues Club Limited v. Berecry & Ors. (2002) NSWCA 154
Northern Sandblasting Pty. Limited v. Harris (1997) 188 CLR 313
State of New South Wales v. Lepore [2003] 212 CLR 511
Stevens v. Brodribb Sawmilling Co Pty. Limited (1986) 160 CLR 16PARTIES :
Byron Starks (Appellant)
RSM Security Pty. Ltd. (First Respondent)
Hotel Bondi Pty. Ltd. (Second Respondent)
Cyril Gardner Maloney (Third Respondent)FILE NUMBER(S): CA 41191/2003 COUNSEL: R.S. McIlwaine SC/J. Loxton (Appellant)
D.A. McLure (Respondent)SOLICITORS: Maurice May & Co. (Appellant)
Shearman Lawyers (Respondents)
LOWER…
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Details
- AGLC
- Starks v RSM Security Pty Ltd [2004] NSWCA 351
- Case
- [2004] NSWCA 351
- Decision Date
CaseChat Overview and Summary
The appeal before the Court of Appeal of New South Wales concerned the vicarious liability of an employer for the actions of its employees and, in some circumstances, independent contractors. The dispute arose from an incident where the plaintiff alleged he was subjected to excessive force by security personnel. The plaintiff sought to hold RSM Security Pty Ltd (the first respondent) and other defendants liable for the actions of the security guards.
The central legal issues before the court were whether RSM Security Pty Ltd could be held vicariously liable for the wrongful acts of its employees, particularly when those acts might be considered to be "on a frolic of his own," and whether the company could be liable for the actions of an independent contractor if it exercised control over that contractor and the contractor acted as its representative. The court also considered the implications of the *Liquor Act 1982*, specifically whether a statutory obligation imposed on a licensee rendered that obligation non-delegable for the purposes of tort law, and whether section 103 of the Act had any bearing on the liability of a licensee for the use of excessive force by a third party not directly employed by them.
The court reasoned that an employer is generally vicariously liable for the unauthorised and illegal acts of an employee if those acts are committed in the course of employment, but not if they are committed "on a frolic of his own." Regarding independent contractors, liability could arise if the principal exercised control over the contractor and the contractor was acting as the principal's representative. The court determined that a statutory obligation under the *Liquor Act 1982* did not automatically render that obligation non-delegable in tort law, and section 103 of the Act did not address the liability of a licensee for excessive force used by a third party not directly employed by them.
The appeal was allowed in part and dismissed in part. The verdict for the second defendant (first respondent) was set aside, and a verdict was entered for the plaintiff against the second defendant, with judgment accordingly. The verdicts for the third and fourth defendants (second and third respondents) were affirmed. The costs order below in favour of the respondents was set aside, with the first respondent ordered to pay the appellant's costs of the appeal and the hearing at first instance. The second and third respondents were ordered to bear their own costs of the appeal and below, except for separately incurred costs not common with the first respondent, which the appellant was to pay.
The central legal issues before the court were whether RSM Security Pty Ltd could be held vicariously liable for the wrongful acts of its employees, particularly when those acts might be considered to be "on a frolic of his own," and whether the company could be liable for the actions of an independent contractor if it exercised control over that contractor and the contractor acted as its representative. The court also considered the implications of the *Liquor Act 1982*, specifically whether a statutory obligation imposed on a licensee rendered that obligation non-delegable for the purposes of tort law, and whether section 103 of the Act had any bearing on the liability of a licensee for the use of excessive force by a third party not directly employed by them.
The court reasoned that an employer is generally vicariously liable for the unauthorised and illegal acts of an employee if those acts are committed in the course of employment, but not if they are committed "on a frolic of his own." Regarding independent contractors, liability could arise if the principal exercised control over the contractor and the contractor was acting as the principal's representative. The court determined that a statutory obligation under the *Liquor Act 1982* did not automatically render that obligation non-delegable in tort law, and section 103 of the Act did not address the liability of a licensee for excessive force used by a third party not directly employed by them.
The appeal was allowed in part and dismissed in part. The verdict for the second defendant (first respondent) was set aside, and a verdict was entered for the plaintiff against the second defendant, with judgment accordingly. The verdicts for the third and fourth defendants (second and third respondents) were affirmed. The costs order below in favour of the respondents was set aside, with the first respondent ordered to pay the appellant's costs of the appeal and the hearing at first instance. The second and third respondents were ordered to bear their own costs of the appeal and below, except for separately incurred costs not common with the first respondent, which the appellant was to pay.
Orders
Orders of the court
1. Appeal allowed in part and dismissed in part.; 2. Set aside verdict for the second defendant (first respondent).; 3. Verdict for the plaintiff as against the second defendant, judgment accordingly.; 4. Verdict for the third and fourth defendants (second and third respondents) affirmed.; 5. Set aside the costs order below in favour of the respondents.; 6. First respondent to pay appellant's costs of the appeal and of the hearing at first instance.; 7. The second and third respondents to bear their own costs of the appeal and in the Court below, except to the extent that they separately incurred costs in the preparation of the case at first instance and on the appeal that were not incurred in common with the costs incurred by the first respondent. The appellant is to pay any such separately incurred costs.
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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