Julia Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2012] NSWDC 294

Julia Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2012] NSWDC 294

The security guard committed assault and battery by intentionally pulling the barstool from under the plaintiff, causing her to fall. Checkmate Security International Pty Ltd employed the guard and was vicariously liable because the wrongful act was an improper mode of performing duties connected with removing the plaintiff from the hotel. The hotel and licensee were not liable because the guard was not their employee, the tortious act was not directly authorised by them, and the evidence did not establish agency, representation, sufficient direction and control, special circumstances, or estoppel sufficient to fix them with liability for the independent contractor's employee. The Civil...

Jurisdiction
Australia
Judgment Date
23 April 2012
Procedural Posture
Tort Claim for Assault and Battery and Damages Arising From Removal From Licensed Premises / Principal Judgment After Hearing
Outcome
Verdict and judgment for the first and second defendants against the plaintiff; verdict and judgment for the plaintiff against the third defendant in the sum of $10,000.
Legal Topics
['assault and Battery' 'vicarious Liability' 'independent Contractors' 'licensed Premises Security' 'general Damages' 'aggravated Damages' 'exemplary Damages' 'civil Liability Act 2002']
['torts' 'damages'] ['assault and Battery' 'vicarious Liability' 'independent Contractors' 'licensed Premises Security' 'general Damages' 'aggravated Damages' 'exemplary Damages' 'civil Liability Act 2002']

Case Brief

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Procedural Posture

Tort Claim for Assault and Battery and Damages Arising From Removal From Licensed Premises / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether an assault and/or battery was committed upon the plaintiff by the security guard pulling or removing the stool from under her.' "Whether Checkmate Security International Pty Ltd was vicariously liable for the security guard's wrongful act as employer." "Whether The Ocean Beach Hotel Shellharbour Pty Ltd or Karma Elliott-Cosmos were vicariously liable for the security guard's wrongful act on an employer/employee, principal/agent, independent contractor, direct authorisation, direction and control, representation, special circumstances, or estoppel basis." 'Whether ss 47 - 50 of the Civil Liability Act 2002 applied.' 'Whether the plaintiff was entitled to general, aggravated or exemplary damages.']

Ratio Decidendi

The security guard committed assault and battery by intentionally pulling the barstool from under the plaintiff, causing her to fall. Checkmate Security International Pty Ltd employed the guard and was vicariously liable because the wrongful act was an improper mode of performing duties connected with removing the plaintiff from the hotel. The hotel and licensee were not liable because the guard was not their employee, the tortious act was not directly authorised by them, and the evidence did not establish agency, representation, sufficient direction and control, special circumstances, or estoppel sufficient to fix them with liability for the independent contractor's employee. The Civil...

Court Disposition

Verdict and judgment for the first and second defendants against the plaintiff; verdict and judgment for the plaintiff against the third defendant in the sum of $10,000.

Orders

  • ['Verdict and judgment for the first and second defendants against the plaintiff.' 'Verdict and judgment for the plaintiff against the third defendant in the sum of $10,000.' 'The plaintiff should pay the costs of the first and second defendants.' "The third defendant should pay the plaintiff's costs in all cases as...