Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250

Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250

None of the exceptions justified imposing vicarious liability on the Hotel or its licensee for the assault and battery committed by the security guard; legislative and agency arguments failed, and there was no error in the damages assessment.

Parties
Appellant: Julia Day; First Respondent: The Ocean Beach Hotel Shellharbour Pty Ltd; Second Respondent: Karma Elliott-Cosmos; Purported Third Respondent: Checkmate Security International Pty Ltd
Jurisdiction
Australia
Judgment Date
05 August 2013
Procedural Posture
Appeal / Final Judgment
Outcome
Appeal dismissed with costs.
Legal Topics
Vicarious Liability, Assault and Battery, Damages Assessment, Licensed Premises Liability, Dual Vicarious Liability, Agency Law
Torts Damages Vicarious Liability Assault and Battery Damages Assessment Licensed Premises Liability Dual Vicarious Liability Agency Law

Case Brief

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Parties

Julia Day

Appellant

The Ocean Beach Hotel Shellharbour Pty Ltd

First Respondent

Karma Elliott-Cosmos

Second Respondent

Checkmate Security International Pty Ltd

Purported Third Respondent

Procedural Posture

Appeal / Final Judgment

Legal Issues

  1. 1 Whether the Hotel or its licensee was vicariously liable for the tort committed by the security guard
  2. 2 Whether the security guard was a true agent of the Hotel or licensee
  3. 3 Whether s 91 of the Liquor Act 2007 creates direct liability

Ratio Decidendi

None of the exceptions justified imposing vicarious liability on the Hotel or its licensee for the assault and battery committed by the security guard; legislative and agency arguments failed, and there was no error in the damages assessment.

Court Disposition

Appeal dismissed with costs.

Orders

  • Appeal dismissed with costs.
  • To the extent that the third respondent has purportedly been joined to this appeal, its name is removed.