Gee v NWQ Management P/L & 2 ors [2002] NSWCA 77 | Case summary

Monday, 11 March 2002 CRAIG DAVID GEE v NWQ HOLDINGS PTY LTD & 3 ORS Judgment 1 MEAGHER JA: In this matter the plaintiff, current appellant, on 30 March 1997 after having a few drinks with a friend of his called Mr Parker, went to a hotel called The Sands Hotel at which he arrived about eight o'clock. He drank some more bourbon whisky and beer at that place and after a while went to watch the dancing. He stayed watching the dancing and talking to various friends from time to time. He was in good health when he arrived at the hotel but at ten past ten or thereabouts, just after the hotel had closed, he was taken to Mona Vale Hospital with a broken arm. The manner in which this occurred was the subject of some dispute although I do not think the details of the dispute really matter. He sued the lessee of the hotel, the first respondent; the licensee who is the second respondent, and the third respondent who is the security organisation employed to look after the security of the premises. 2 It is common ground that at some stage between 9pm and 10pm that night there was a scuffle inside the hotel. The plaintiff alleges that in the course of quieting the scuffle the employees of the third defendant, one or more of them, removed him from the premises, took him outside the front of the hotel and threw him violently on to the ground. 3 It is not in dispute between the parties that he was in fact removed by the employees of the third defendant. It is not in dispute between the parties that he was at some stage thrown to the ground by someone. It is not in dispute that in the process he broke his arm. What is in dispute is whether any of the defendants are responsible for this. 4 Her Honour found that none of the defendants were responsible. It is very difficult to see, prima facie, how this could be correct. It cannot be suggested that he was engaged in some activity which involved breaking his own arm. There was no suggestion in the evidence that some person other than the first three defendants or their representatives did anything to break his arm. On his evidence it is perfectly clear that an employee of the third defendant did throw him on the ground and break his arm. 5 There was an independent witness, who happened also to be a remote friend of his, called Mr Bembow who witnessed the actual fall and on his version the plaintiff was thrown on to the ground by one of the employees of the third defendant. It is of some interest to note that on the relevant matters Mr Bembow's evidence was not subjected to any cross-examination. 6 There was no evidence from any of the employees of the third defendant who preferred the silence of the well of the Court to entry into the witness box. There was no suggestion that Mr Gee, the plaintiff, provoked any of the defendants in such a way as to cause them to throw him to the ground in self-defence. 7 In these circumstances I find it impossible to see how any conclusions can be reached other than that the third defendant was guilty of negligence. The damages suffered are obviously very considerable but we cannot at the moment deal with them. 8 Her Honour in her reasons for judgment said a number of things which are not easy to understand, with respect. Her Honour seemed to be under the impression that Mr Bembow and the plaintiff gave different versions of the relevant facts. In truth they did not, except on peripheral matters. they were both in agreement on the one thing that really matters, namely that an employee of the third defendant threw the plaintiff violently on to the ground and as I have said, in Mr Bembow's case, his evidence to that effect was not cross-examined. 9 Her Honour also said that she preferred the evidence of a Mr Wright to that of the plaintiff as to how the scuffle began. Mr Wright's evidence was to the effect that Mr Gee, the plaintiff, was one of a group of drinkers, who threw him to the ground and began kicking him with their feet, and it was with difficulty he was rescued, and resumed his activities. Her Honour said that she preferred that version to the plaintiff's version. That may or may not be so; for the purpose of this appeal we do not have to decide whether Mr Wright's version is correct or incorrect. Mr Wright cannot give evidence of any utility about how the actual assault outside happened because on any version he remained inside the hotel and could not see out through the door. What happened outside is something that he cannot give any evidence about. 10 Her Honour also, it seemed to me, rather distracted herself from the issues that really mattered, by devoting herself to minute examination of the chronological differences recited by the various witnesses. Since precise timing was hardly the object of anyone's attention that evening, this seems to me to be rather a waste of time. What time the assault happened does not seem to me to matter much. On any view it happened some time shortly before ten o'clock because he was in the hospital shortly after ten o'clock. There can, I think, be no point about asking for a retrial on the question of liability because liability has already been firmly established. There is no reason to think that anyone has been precluded from giving extra evidence which would be of any utility on that point. 11 A subsidiary matter arose in argument in the Court of Appeal, although it does not seem to have been the subject of any attention at the trial, namely the question of non-delegable duty. It is alleged that the duty of the first two defendants, the first two respondents, to maintain order in the hotel extended to amounting to a non-delegable duty which would have precluded the delegating to the third defendant the normal duties of a security organisation. This submission, in my view, is totally erroneous and is sufficiently covered by the decision of the Newcastle Entertainment Security Proprietary Limited v Simpson 81 528 ATR 1999. If the matter is of any relevance in the present case, which I doubt, that seems to me the end of that. 12 The orders of the Court which I propose, therefore, are as follows: 1. The appellant's appeal against the third respondent allowed and judgment in favour of the third respondent set aside. 2. The appellant's appeal against the first and second respondents dismissed with costs. 3. As to the costs of the appellant's case against the third respondent, the third respondent should pay those costs. 4. There will be a new trial as to damages. 13 MASON P: I agree. 14 I want to add two points. First, as regards Mr Wright's evidence. He corroborated the evidence of the plaintiff to the effect that the plaintiff was escorted from the hotel in the grip of one of the security officers, but he was unable, for reasons given by Meagher JA, to cast any light on what happened thereafter. He did say this, that he identified the security officer as either a Mr Torrens or a Mr Arndt. Her Honour noted that she did not hear from either, from which she concluded that there was nothing that either could say that would assist the defendants, and she cited Jones v Dunkel (1959) 101 CLR 298. In the circumstances of this case I think that the failure to contradict the evidence of Mr Bembow, indeed the failure to challenge it, coupled with the failure to call or explain the absence of the security officer who ejected the plaintiff from the premises made the verdict for the plaintiff well-nigh inevitable. 15 The other point concerns the argument based on ss 101 and 103 of the Liquor Act 1982. It is true that those provisions do impose on the licensee statutory obligations controlling how he or she is to administer the premises and making it plain that those obligations are non-delegable for the purposes of the Liquor Act. But I do not think it follows that they are non-delegable for the purposes of the law of tort. The statutory material is relevant to the issue of non-delegability but it doesn't establish that fact. Were it otherwise then it seems to me that if one takes the classical case of Deatons Pty Ltd v Flew (1949) 79 CLR 370 in the High Court the licensee and the employer would have been liable whether or not the barmaid's actions were in the course of her employment. 16 I agree with the orders proposed. 17 IPP AJA: I agree with Mr Justice Meagher and the President. 18 HISLOP: Your Honour there are a couple of matters. Firstly, I may have missed it, but is it appropriate to order there be a verdict for the appellant against the third respondent in such sum as to be determined. Secondly, there were orders made against the appellant in the District Court to pay the costs of each of the three respondents in this Court. We would ask that order be overturned and that there be substituted an order whereby the third respondent is to pay the whole of the costs in the Court below, also the costs incurred to the first and second respondent in this Court. 19 MASON P: Why should you get a Bullock or Sanderson order in this case? Because that's, I think, in effect what you're asking for. 20 HISLOP: Yes your Honour, it is in effect what we're asking for. And the reason for that is one of the things I alluded to earlier, and that is that the hotel, as it were, was holding out the security staff as being members of its direct staff, the shirt which they wore had the Hotel Sands logo on it and "Security." The plaintiff gave evidence he believed from the shirt that the security person was an employee of the hotel. Mr Wright's employment was during daylight hours, I think, with the hotel directly, a cellarman I think it was, and a gardener. And then in the evenings he worked in security when that was required. There was obviously a degree of retained control between the parties. My learned friend who appeared for the third respondent alluded to that, and there was also evidence that the number of security personnel were stated and approved by the hotel and that there was some degree of direction and control exercised. All of those matters, in our submission, particularly when they are allied with contested cross-actions between the defendants made it an appropriate case for the plaintiff to sue the three organisations who were nominated, and for those-- 21 MEAGHER JA: Your client would not say that you'd been assaulted by a gardener. 22 HISLOP: I was talking about Mr Wright who was the head of the security, your Honour, and suggesting there could be a confusion as to who his employer was in the evenings, particularly when he was wearing this particular shirt which had the logo of the hotel upon it, and similarly the other employees were attired in like manner. Indeed, one of the things that was stated in the amended statement of claim, the plaintiff being in doubt as to the person from whom he is entitled to redress, sues the defendants with the intent of which if any of the defendants is liable and to what extent may be determined as between all parties. So in short, for those reasons we would submit this is an appropriate case for a Bullock or Sanderson order. 23 GAMBI: Can I be heard in relation to that your Honour? Because if it's a Sanderson order that your Honours are proposing to give in the matter, that effectively means that my client has to chase the third respondent anyway. 24 MASON P: We are not proposing to give it. 25 GAMBI: Thank you, your Honour. 26 MASON P: We leave standing the orders of the District Court in relation to the cross claims and we leave standing the verdict for the first and second defendants. 27 The orders that are proposed are as follows: (1) Appeal allowed in part. (2) Set aside the verdict for the defendant against the third defendant that was entered in the District Court. (3) In lieu thereof enter a verdict for the plaintiff for damages to be assessed against the third defendant and order the third defendant to pay the plaintiff's costs of the claim against the third defendant to date. (4) Third respondent to pay the appellant's costs of the appeal and to have a certificate under the Suitors Fund Act if qualified. (5) The appellant to pay the first and second respondents' costs of the appeal. 28 Does anyone wish to speak against those orders? 29 GAMBI: It is implicit in that, I take it your Honour, that the appellant's appeal against the first and second respondents is dismissed. Should that be a formal order? 30 MASON P: Yes. 31 GAMBI: With costs. Your Honour has already - No 6, thank you your Honour. 32 MASON P: No 5 will be the appeal against the first and second respondents dismissed. The appellant to pay the first and second respondents' costs of the appeal. I should also say the cross-appeal is dismissed. Those orders will be made. 33 HISLOP: Your Honour added a new paragraph 5 and a new paragraph 6. I take it that they are in addition to the paragraphs that you had already given, bearing the same numbers? 34 MASON P: Yes they are. I made five a composite paragraph but we can break them up. No 5 will be: Appeal against the first and second respondent dismissed. No 6 will become: Appellant to pay first and second respondents' costs of the appeal. (7) Cross-appeal dismissed. 35 HISLOP: But your Honour had previously, as I have noted, the original No 5, third respondent to pay the appellant's costs of the appeal and to have a Suitors Fund if appropriate. I had that down as-- 36 MASON P: That was (4) in my numbering. 37 HISLOP: I do apologise then if I got the numbering wrong.

Gee v NWQ Management P/L & 2 ors

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