Civil Liability and the ‘one punch’ laws
Security Guards, assault and liability – who can I sue?
By Timothy Driscoll LLM
Case study: Day v The Ocean Beach Hotel Shellharbour Ltd (2013) NSWCA 250
If someone assaults you could sue them for damages for the loss suffered including perhaps aggravated (punitive) damages for the egregious breach which you have suffered.
The question then normally comes who should/can I sue?
In certain circumstances a legal entity including an individual or Corporation can be held to account for someone else’s conduct.
The most noticeable example is that of an employer being held liable for the conduct of its employees or the State of NSW being held liable for it’s Police Officers on duty.**
But what about security guards/bouncers at pubs or clubs?
Ordinarily, a security guard is employed by a security company – a $1 company with little if any assets or insurance. Hence, any action brought against security guards/bouncers for an assault will typically lead to a case of all liability but no means of enforcement of an order for compensation.
So what about the club or pub?
A recent case in the Court of Appeal in NSW named Day v The Ocean Beach Hotel Shellharbour Ltd (2013) NSWCA 250 sought to attach liability to the owner of the principles arguing a new situation in which a person can be held to account for another’s actions.
In this case a bouncer was hired by a security company called Checkmate. He was directed by the pub/club/hotel to remove a patron.
The bounder did so but used excessive force pulling the chair from underneath them causing the patron injury.
There was no doubt that ‘Checkmate’, the employer of the bouncer was liable. But they were no longer in existence! So that left the pub/club/hotel.
The Plaintiff argued that the pub/club/hotel were responsible because:
1. The acts were authorised by the pub/club/hotel,
2. The bouncer was the agent of the pub/club/hotel,
3. Section 91 of the Liquor Act implies agency and liability,
4. The pub/club/hotel should be held to account dually with his employer for the actions of the bouncer.
All of the above arguments were rejected.
The Court found that the actions were not authorised, nor was he an agent at law or deemed under the Liquor Act, nor was there a principle enabling his non-employer to be held to account for his conduct.
The only glimmering light is that the Court of appeal felt bound by a higher Court’s precedent on whether a pub/club/hotel should be held to account dually with his employer for the actions of the bouncer.
This leaves the door open for the High Court to clarify this issue which is of great significance. The ‘one punch laws’ and other policies regarding alcohol fuelled violence and anti-social behaviour, causing government intervention to tackle the issue. Will the Common law follow suit? Time will tell.
There seems to me a least some policy grounds for the creation of such a responsibility. However, the fundamental condition of control seems to be lacking – the pub/club/hotel does not usually exert any sufficient control over the conduct of the bouncer past directing them to do something as opposed to the means of or training as to how to perform such bona fide duties.
If you have been assaulted by a bouncer and are suffering wage loss and/or require significant treatment – we suggest you consider obtaining legal assistance to determine any rights that you may have against a security company or perhaps a pub/club/hotel.
10 July 2014
* Section 7 Law Reform (Miscellaneous Provisions) 1983 (NSW)
** Section 9B Law Reform (Miscellaneous Provisions) 1983 (NSW)