(Emphasis added)
22 Clause (9) provides:
"It is agreed by all parties of this agreement that [the second defendant] will manage the nightclub at the Archer Resort with the supervision solely of the other parties involved in this agreement [ie, the third defendant and the fourth defendant]."
23 Exhibit N is a partnership agreement dated 17 November 1998, and the parties to that agreement are identified as the third defendant, the fourth defendant, the fifth defendant and the sixth defendant. It is unnecessary to record the detail of the provisions of this agreement save to record that the partnership business is identified in the document as the business carried out under the firm name of "Archer Hotel/Motel at Kalander Street, Nowra". This partnership agreement I am satisfied relates to the premises in which the Legends Nightclub was located.
24 Exhibit P evidences that the holder of the necessary hotelier's licence for the period 20 November 1998 to 22 July 2002 was the third defendant.
25 There was no evidence as to the renewal of the lease agreement, Exhibit O, but I infer in the circumstances of this case a continuance of the lease and of the obligations under the lease up to the time that the plaintiff was assaulted.
26 The second defendant tendered the wages book for employees in the nightclub covering the period from 4 July 1999 to 25 June 2000, and this records the names of persons identified as employees as hot dog vendor and disc jockey within that period. It identifies the second defendant as their employer. Noteworthy is the absence of the first defendant as an identified employee of the second defendant during that period. That absence is, of course, consistent with the expression of the obligations undertaken by the third and fourth defendants in the lease agreement with the second defendant, Exhibit O. The evidence of the payment of wages by the second defendant to the disc jockey and to the hot dog attendant is consistent with the discharge of the second defendant's obligations under cl (7) of Exhibit O.
27 There is no evidence before me that the second defendant employed the first defendant, and I am satisfied on the evidence that it was the partnership identified which was responsible for the payment of the wages of the first defendant and which is to be regarded as his employer.
28 In coming to that conclusion, I am mindful of the evidence given by Mr Stargate, who was employed at the Archer Resort as a manager for some twelve months prior to the assault. Mr Stargate said his duties included looking after bar staff and the running of the bars. Mr Stargate said that as manager he reported to the third and fourth defendants. He gave instruction to security staff in relation to their duties, and he identified the first defendant as one of those security staff personnel. Mr Stargate said that he gave security staff instructions to work in pairs, and he gave instructions as to how they were to approach patrons. He also gave instructions that security staff were only to use "equal opposite" force to remove somebody (T 253). I am also mindful that the first defendant gave evidence that, if practical, he would report where a problem arose to the duty manager, and the first defendant also agreed that the security staff would meet after a shift to discuss matters that occurred during the shift. That evidence was consistent with the evidence of Mr Stargate who said that after the nightclub closed each morning he spoke to security staff about any incidents on the preceding shift. I accept the evidence of Mr Stargate that he would speak to security staff in order to consider whether security arrangements could be improved.
29 The lease, Exhibit O, directly identifies the third and fourth defendants as being responsible for payment of the first defendant's wages. Having regard to all the evidence to which I have referred, I find on the balance of probabilities that the plaintiff was employed by the third, fourth, fifth and sixth named defendants. In so concluding, I am, of course, mindful that the fifth and sixth named defendants were not parties to the lease agreement, Exhibit O, but the partnership agreement pre-dated the lease, and I have regard to its implications. Moreover, the third, fourth, fifth and sixth defendants have the same legal representation in this cause. It has not been contended in the event that the employer-employee relationship is found to exist as between the first defendant and any one of the third, fourth, fifth and sixth defendants, that it should not be found to exist as against all four of them. No issue has been presented as arising between those defendants.
30 The issue of vicarious liability which arises in this case is to be determined having regard to the finding I have expressed.
31 Returning to consideration of the case as particularised against the second defendant, it depends essentially upon proof that the second defendant employed the first defendant. It has not been proved that he did so, and the case of failure to instruct the first defendant has not been proved as against the second defendant. Nor is the principle of vicarious liability enlivened as against the second defendant.
32 Accordingly, the plaintiff fails as against the second defendant, and that defendant is entitled to the entry of judgment in his favour.
33 The case as particularised against the remaining defendants is identical. It is alleged that each of those defendants was negligent in the following respects:
"a. Allowed the First Defendant to intentionally and unlawfully assault the plaintiff.
b. Failed to protect the Plaintiff against unlawful assault by his agent, employee, or servant, the first defendant;
c. Failed to instruct or adequately train his agent, employee, or servant, the first defendant;
d. Failed to instruct his agent, employee or servant, the first defendant, not to assault the patrons;
e. Failed to conduct the nightclub business so as not to expose the plaintiff to unnecessary risk of injury.
f. Failed to take any reasonable or adequate precautions for the safety of the plaintiff;
g. Exposed the plaintiff to a risk of injury that could have been avoided by reasonable care."
34 It is not suggested that any of these defendants encouraged the first defendant to assault the plaintiff. In effect, what is alleged is that each of these defendants failed to prevent the assault that occurred by necessary training or instruction of the first defendant.
35 The evidence was that the first defendant held a security guard's licence and that in order to obtain that licence it had been necessary for him to do a course and to be approved as a licence holder by the police (T 236-237). The first defendant acknowledged that he had been given instruction about the use of force in the course of his training and he also said that the manner in which he behaved towards the plaintiff was out of character with the way in which he ordinarily behaved as a security officer. He said it was not his way of performing his duties to assault people. Mr Stargate gave evidence, which I accept, that he had never seen the first defendant being violent to patrons and that he had observed him to be very quiet and very tolerant in the performance of his duties.
36 Mr Kennedy submitted that there was negligence by the first defendant's employers by allowing him to deal with the plaintiff without assistance. The evidence was that there were two security guards outside the nightclub and Mr Stargate gave the evidence, to which I referred earlier, when instructions had been given to the security officers as to how they were to approach patrons, and they had been instructed to work in pairs. It is not the case that the first defendant has complained that he was not given adequate assistance. Plainly, the first defendant acted on his own initiative.
37 I am not satisfied that the plaintiff has established that there was any relevant instruction or training that ought to have been given to the plaintiff by any of the defendants, the provision of which would have avoided the harm suffered by the plaintiff. The first defendant gave no evidence that there was any relevant failure by his employer, and I am not satisfied that such has been proved.
38 Accordingly, I am not satisfied that the plaintiff has proved the negligence particularised as against the third defendant, the fourth defendant, the fifth defendant and/or the sixth defendant.
39 This leaves the question as to whether or not these defendants are vicariously liable for the assault committed by the first defendant upon the plaintiff.
40 In the much cited decision in Deatons Pty Limited v Flew (1949) 79 CLR 370 Williams J said this as to principle (at pp 384-385):
"We were referred to a large number of cases but we cannot do better, I think, than rely, like Jordan C.J., on the statement of the law in the passage from Salmond on Torts, 9th ed. (1936), p. 495 cited with approval in the judgment of the Privy Council in Canadian Pacific Railway Co. v. Lockhart (1942) A.C. 591, at p. 599. 'It is clear that the master is responsible for acts actually authorized by him: for liability would exist in this case, even if the relation between the parties was merely one of agency, and not one of service at all. But a master, as opposed to the employer of an independent contractor, is liable even for acts which he has not authorized, provided they are so connected with acts that he has authorized that they may be regarded as modes - although improper modes - of doing them. In other words, a master is responsible not merely for what he authorizes his servant to do, but also for the way in which he does it. On the other hand, if the unauthorized and wrongful act of the servant is not so connected with the authorized act as to be a mode of doing it, but is an independent act, the master is not responsible: for in such a case the servant is not acting in the course of his employment, but has gone outside of it.'"
41 In State of New South Wales v Lepore (2003) 212 CLR 511 Gleeson CJ said, on the issue of vicarious liability, at 536 [42]:
"It is clear that if the wrongful act of an employee has been authorised by the employer, the employer will be liable. The difficulty relates to unauthorised acts. The best known formulation of the test to be applied is that in Salmond, Law of Torts in the first edition in 1907 at p 83., and in later editions eg, Salmond on Torts, 9th ed (1936), pp 94-95: an employer is liable even for unauthorised acts if they are so connected with authorised acts that they may be regarded as modes - although improper modes - of doing them, but the employer is not responsible if the unauthorised and wrongful act is not so connected with the authorised act as to be a mode of doing it, but is an independent act."
42 Later, the Chief Justice proceeded to analyse the conduct of the barmaid in Deatons v Flew at 539 [51]:
"…If, on the facts, it had been possible to treat maintaining order in the bar as one of the barmaid's responsibilities, and if, on the facts, it had been open to regard her conduct as an inappropriate response to disorder, then the jury could properly have held the employer liable in trespass. However, the barmaid's only responsibility was to serve drinks, and throwing a glass of beer at a customer could not be regarded as an improper method of doing that…"
43 In Sandstone DMC Pty Limited & Anor v Trajkovski & Anor [2006] NSWCA 205 the Court of Appeal was concerned to determine whether the employers of a security officer at a nightclub were liable for harm inflicted upon a patron when he was assaulted by the security officer after that officer had removed him from the nightclub. The patron was successful against the security officer's employer at first instance and the appeal was dismissed. In Sandstone, Ipp JA, with whom the other members of the court agreed, made this analysis as to the misconduct of the security officer, referring to the judgments in Lepore (at [19-[22]):
"19 Firstly, removing disorderly patrons and persuading them not to return to the nightclub was part of Mr Eurkul's responsibilities and it was open to the trial judge to regard his conduct 'as an inappropriate response' (in the words of Gleeson CJ at 539, [51]) to Mr Trajkovski's conduct.
20 Secondly, the judge's unchallenged finding that the assault was committed 'to ensure that a troublesome patron would go on his way and leave the club vicinity' satisfied an element that Gummow and Hayne JJ said (at 591, [231]) was capable of establishing vicarious liability, namely, the doing of a wrongful act in intended pursuit of the employer's interests or in intended performance of the contract of employment.
21 Thirdly, on his Honour's finding, there was a close causal connection between the acts causing injury and the employment (the acts being perpetrated in the belief that the employers' interests were being furthered) and there was a close temporal connection (a matter of seconds) between the completion of the physical removal and the assault. Thus, the element of a sufficiently close connection (required by Kirby J) was satisfied.
22 Irrespective of whether Mr Trajkovski gave any indication of his intention to return, on the judge's findings, the assault was committed to persuade him not to return. On this basis, the assault was committed at a time when Mr Eurkul was continuing to carry out his duties as an employee. The assault was a vicious one, but the judge found that Mr Eurkul did not intend to cause Mr Trajkovski permanent or serious injuries. There was no finding that the assault was committed out of vindictiveness or spite; rather, the finding is that Mr Eurkul assaulted Mr Trajkovski because he thought that, by punching and kicking him, he would cause Mr Trajkovski to go on his way."
44 In Deatons Pty Limited v Flew the conduct of the barmaid who threw the beer from the glass and then the glass itself at a customer was determined to be conduct for which the employer was not vicariously liable. It was no part of her duties to keep order at the bar and her position simply required of her that she serve drinks to customers (see the analysis of Deatons by Gleeson CJ in Lepore at [50] and by Ipp JA in Sandstone at [15]).
45 It is important in the present case to have regard to the nature of the first defendant's duties. The first defendant was employed to control the entry of patrons into the nightclub and his authority extended to ensuring that intoxicated persons did not enter and that persons who did enter were of legal age. His duties extended to turning away quarrelsome or argumentative patrons. The third defendant, as the licensee of the premises, was empowered by s 103 of the Liquor Act to refuse to admit to the premises persons who were intoxicated or quarrelsome or disorderly, and the third defendant was also empowered to turn out or cause to be turned out of those premises any person who was intoxicated or quarrelsome or disorderly. The security officer performing such a function was doing something which he was employed to do.
46 The evidence establishes that the plaintiff was affected by intoxicating liquor at the time of the assault and he was making a nuisance of himself outside the nightclub premises. It was in the interests of the defendants that there was no interruption of or disruption of the vetting of those intended patrons queued up to go into the nightclub and what the plaintiff did enlivened the first defendant's obligations in the discharge of those duties I have identified. It seems to me in the circumstances that the first defendant was authorised in the scope of his employment duties to turn the plaintiff away from the nightclub. Of course, he was not authorised specifically to take the steps that he did take to turn the plaintiff away and what he did exceeded the use of reasonable force. Nevertheless, in my opinion his conduct is properly to be categorised as so connected with his authorised employment activities as to be regarded as a mode of performing them, albeit an improper mode.
47 Hence, I conclude that the third, fourth, fifth and sixth defendants are vicariously liable for what the first defendant did and hence that they are liable to compensate the plaintiff in damages for the harm suffered.
48 The defendants pleaded contributory negligence. There was no evidence that the plaintiff had been suspended from entering the nightclub, and, indeed, the plaintiff denied this (T 45). The defendants also relied upon the plaintiff's conduct in quarrelling with the first defendant and in using offensive language towards him. However, for the reasons stated, I am not persuaded that the plaintiff's case in negligence has been established against the third, fourth, fifth and sixth defendants. In the circumstances, the issue of contributory negligence does not arise.
49 It may well be the case that the plaintiff's conduct provoked the first defendant but this is not a case in which the plaintiff is claiming exemplary damages, and, where compensatory damages only are claimed, the damages are not to be reduced by reason of provocative conduct on the part of the plaintiff: see Fontin v Katapodis (1962) 108 CLR 177 and in particular the judgment of Owen J at 187; and Lamb v Cotogno (1987-1988) 164 CLR 1.
50 This brings me to the assessment of damages.