Dickson v Chaffey & Reddawn

Introduction 1By notice of motion filed 14 October 2011 the second defendant, Event Safety & Security Solutions Pty Ltd trading as Reddawn ("Reddawn"), seeks summary judgment against the plaintiff pursuant to r 13.4 of the Uniform Civil Procedure Rules ("UCPR"), or, in the alternative, that the statement of claim be struck out pursuant to r 14.28. In the further alternative, Reddawn seeks an order pursuant to r 28.2 that the "question of liability in the proceedings" be determined as a separate question in advance of all other issues. 2The proceedings arise out of an incident occurring in the early hours of 2 December 2007. The first defendant, Russell Peter Chaffey, was employed as a security guard by Reddawn. At about 2.50am on 2 December 2007 he was performing his duties outside "Q Bar" which is located within the licensed premises of the Exchange Hotel at 34 Oxford Street, Surry Hills. He was wearing his security uniform as required by Reddawn. His car was parked opposite the entrance to Q Bar in Oxford Street. The plaintiff, Steven George Dickson, was in the vicinity of Mr Chaffey's motor vehicle. He leant on the motor vehicle and the car alarm sounded. Mr Chaffey crossed the road and there was an altercation in which Mr Dickson claims that Mr Chaffey intentionally struck him. It is not in dispute that as a result of the altercation Mr Dickson suffered significant injuries. 3In 2010 Mr Dickson filed a statement of claim against Mr Chaffey and Reddawn. He sued Mr Chaffey for assault and battery and pleaded that Reddawn was vicariously liable for Mr Chaffey's assault. 4On 16 September 2011 an order was made extending the time for service of the statement of claim on Mr Chaffey until 30 September 2011. Due to difficulties in locating Mr Chaffey he was not served until 14 December 2011. At the hearing of this motion I made an order under r 1.12(2) of the UCPR extending the time for service of the statement of claim up to and including 14 December 2011. As at the date of the hearing of this motion Mr Chaffey had not entered a notice of appearance or filed a defence. He was not served with Reddawn's notice of motion and he did not appear at the hearing of the motion. 5Reddawn has filed a defence. The defence admits many of the facts alleged in the statement of claim concerning the alleged assault and Mr Chaffey's position. I have set out the gist of those admissions above at [2]. 6Certain paragraphs of the statement of claim were either not admitted or denied. In particular, Mr Dickson pleads the following: "7.The first defendant required his motor vehicle to travel to and from various venues to work as directed by [Reddawn]" 7This paragraph is denied by Reddawn who further pleads that it had no legal, equitable or other interest in the motor vehicle. 8Paragraph 8 of the statement of claim pleads: "8.On the evening of 2 December 2007 the first defendant had parked his motor vehicle across the road from where he was working so that he could keep an eye on it during his employment duties." 9Reddawn admits that on 2 December 2007 Mr Chaffey parked his motor vehicle across the road from where he was working but otherwise does not admit paragraph 8. 10Paragraphs 17 and 18 of the statement of claim plead as follows: "17.The assault committed by the first defendant occurred in the course of, and arising out of, his employment with the second defendant. 18.At all material times the second defendant was vicariously liable for the actions of the first defendant." 11Both of these paragraphs are denied by Reddawn. In further response to paragraph 17 Reddawn pleads various facts concerning the assault which it says demonstrates that the actions of Mr Chaffey "in striking the plaintiff were entirely unconnected with his employment by [Reddawn]". 12On 21 January 2011 Reddawn solicitors wrote to the plaintiff's solicitors seeking further and better particulars of the statement of claim. Question 9 of that letter asked the following which was said to relate to paragraphs 10 to 12 of the statement of claim: "Is it alleged that [Reddawn] directed and or permitted Chaffey to leave the front entrance of Q Bar to cross Oxford Street and confront the plaintiff?" 13Mr Dickson's solicitor replied: "This is not within the plaintiff's knowledge at this time." 14In relation to paragraph 17 and 18 of the statement of claim, Reddawn's request for particulars asked as follows: "17.On what basis is it alleged that: 17.1Chaffey's assault on the plaintiff "occurred in the course of, and arising out of, his employment" with [Reddawn]? 17.2[Reddawn] is vicariously liable for Chaffey's assault on the plaintiff in the circumstances? 18.What was the duty of care allegedly owed by [Reddawn] to the plaintiff in the circumstances alleged in the [statement of claim]. 19.If it is alleged that: 19.1Chaffey was under any express or implied authority of [Reddawn] to confront the plaintiff on the other side of Oxford Street opposite Q Bar; or 19.2In confronting the plaintiff, Chaffey was performing services in connection with his contract of service with [Reddawn]; Please specify the basis for those allegations." 15The answers were as follows: "17.1The nature of Mr Chaffey's employment requires him to use a motor vehicle. This motor vehicle was used to store work-related items such as vests and other items incidental to his employment. It is alleged his vehicle was required to be readily available in order to transport him upon direction by [Reddawn]. 17.2[Reddawn] is responsible for the actions of Mr Chaffey as a subordinate. 18.[Reddawn] have a responsibility to ensure that its employees act in an appropriate manner when conducting employment activities. This includes, but is not limited to, the duty to ensure that its employees do not inflict excessive physical harm on anyone whilst undertaking duties as a security guard. 19.1Yes. 19.2Yes." 16Four points should be noted about this. First, question and answer 18 do not make sense. They assume that there is a negligence claim pleaded but that is not the case. Second, to the extent that specific facts, matters and circumstances are pleaded which are said to give rise to vicarious liability on the part of Reddawn they all concern the connection between Mr Chaffey, his motor vehicle and his employment with Reddawn. These are the matters pleaded in paragraphs 7 and 8 of the statement of claim and expanded upon in paragraph 17.1 of the answers to particulars. Third, the answers given in 19.1 and 19.2 of Mr Dickson's reply to the request for particulars were non-responsive. What was being asked was not simply whether any allegation was being made that Mr Chaffey was under express or implied authority from Reddawn to confront Mr Dickson but, if he was, what was the basis for that allegation. No such basis was specified. Fourth, the combination of answer 9, the assertions in 19.1 and 19.2 and the broad allegations in paragraph 18 involve Mr Dickson seeking to leave open the possibility of proving a form of vicarious liability that does not rest upon some connection between Mr Chaffey's motor vehicle and his employment. In particular, Mr Dickson seeks to leave open the possibility of proving that some form of direction or implied authority was given to Mr Chaffey by his employer that extended the scope of his employment so that it could encompass his conduct in confronting Mr Dickson. Although it is a generous reading of the statement of claim and particulars, I consider that such a case is left open on the pleadings. 17At the hearing of the motion, Reddawn read an affidavit from its solicitor which annexed various material from the police investigation and subsequent trial of Mr Chaffey. The material is generally consistent with what I have described above at [2]. It points to Mr Chaffey having confronted Mr Dickson in the belief that Mr Dickson had damaged or threatened to damage his motor vehicle. The material includes a written statement from a director of Reddawn recording that he had told Mr Chaffey not to take his car to work because it could be damaged and denying Reddawn had any interest in the motor vehicle or paid Mr Chaffey for any motor vehicle related expenses. At his trial, Mr Chaffey had stated that he was protective of his car because he needed it to travel to work. 18Reddawn also tendered a subpoena that had been issued by Mr Dickson's solicitor to the liquidator of Reddawn which had apparently not yielded any documents. They also point to a statement by Mr Dickson's solicitors in the GCM document filed with the statement of claim recording the solicitor's opinion that discovery of documents would not be needed and neither would interrogatories. These matters were said to demonstrate the absence of potential sources of evidence available to Mr Dickson to fill in the evidentiary gaps in his case.