Ryan v Ann St Holdings P/L [2006] QCA 217

Judgment (73 paragraphs)

[1]

Trevor Watt and Associates for the applicant/appellant

[2]

Jonathon C Whiting and Associates for the respondent

[3]

[1] WILLIAMS JA: The respondent, Gavin Patrick Ryan, brought an action in the District Court against the applicant, Ann Street Holdings Pty Ltd, claiming damages for negligence. The action arose out of an incident which occurred at The Beat Night Club in Fortitude Valley shortly after 5.15 am on 25 January 2002. It was not in dispute that at that time a security guard employed by the applicant, one Vaivasa Aperu, for no apparent, or justifiable reason, punched the respondent heavily on the right side of his face, causing him to lose consciousness for a time. The respondent brought the proceeding to recover damages for the personal injuries he so sustained; ultimately the respondent obtained judgment against the applicant in the sum of $37,502.

[4]

[2] From that decision, the applicant seeks leave to appeal to this Court. Because the judgment was for an amount less than the jurisdictional limit of the Magistrates Court, leave of this Court is required: s 118 of the District Court of Queensland Act 1967 (Qld). The Court heard submissions on both the application for leave and the appeal.

[5]

[3] As was said by the trial judge in his reasons, when Aperu hit the respondent "he intentionally committed a criminal act". The respondent succeeded at trial because it was held that the applicant was vicariously liable for the conduct of Aperu. It is that conclusion which the applicant seeks to attack on the appeal.

[6]

[4] On the night in question the applicant employed five security guards. There was no formal description in the evidence of the duties of a security guard, but the trial judge said it could "be safely assumed that the security guard's basic task was to protect the club, the club staff and the club's patrons from any patron who was unruly or disorderly."

[7]

[5] The statement of claim alleged that at all material times Aperu "was authorised by the [d]efendant, or alternatively had implied and/or ostensible authority on behalf of the [d]efendant, to ... [a]pply physical force during the course of his employment and/or engagement at the said night club". That allegation was admitted in the defence. No evidence was led as to the instructions, if any, given by the applicant to security personnel as to the use of force.

[8]

[6] The evidence was that the duty manager had the responsibility of supervising the security guards. The general policy was that security guards would report to the duty manager any incidents that occurred. Peek, the duty manager at the material time, gave evidence that "he kept an eye on the security staff with a view to making sure that they did not exert too much physical force when dealing with patrons."

[9]

[7] The evidence did establish that one of the duties of a security guard was to see that patrons left the club in an orderly way by 5.30 am. There was no admittance to the club after 5.00 am. Normally a person leaving the club after 5.00 am would not be allowed re-admittance unless there was some particular reason, such as, for example, leaving some possessions inside. The evidence from Peek was that in such circumstances the security guard would "do the right thing and invite a patron to come back inside and have a look around for his or her property".

[10]

[8] The respondent and a friend named Tyson went to the nightclub at about midnight on 24 January. The following relevant findings were well supported by the evidence:

[11]

"By 5.00am they were affected by alcohol, but in control of themselves. They had been drinking, talking and listening to the music. They did nothing to draw any attention to themselves. They were quiet and well behaved."

[12]

The respondent and Tyson gave evidence that they did see a man being escorted from the premises by security staff and they observed the man was "roughly handled by two or three guards".

[13]

[9] Further relevant findings made by the trial judge can be summarised as follows. At about 5.20 am the respondent and Tyson left the club and stood talking on the footpath. Other people were involved in the conversation. Aperu approached Tyson and asked Tyson if he would go back inside and help a friend leave the club. Tyson did what was asked of him, but saw no other patrons in the club. He was then ordered by Aperu to sit down and was addressed by Aperu as "an arsehole". The situation was described as "threatening" to the extent that Tyson was alarmed and said that he did not want any trouble. Aperu slapped him three times on the face before telling him to "fuck off". Tyson then left the club, and was pushed by other security staff as he reached the front door. Aperu then called out to the respondent and again indicated there was a patron inside who needed help. The request was to the effect that some acquaintance of the respondent needed assistance. Aperu then ushered the respondent back into the club towards the rear of the bar area. The respondent did not see anyone there and commenced to leave. It was then that Aperu hit him heavily on the right side of the face, the blow knocking him to the ground, where he was unconscious for a time. At that stage Peek walked into the bar area and saw other security guards standing near the respondent. Peek asked what was going on as he could see blood on the respondent's face and shirt. The finding made by the trial judge was that the "guards said that he had slipped over". Peek expressed some doubt about that explanation but the guards insisted the respondent had slipped over and that "nothing was going on". Peek then went about his other business and another security guard picked the respondent up off the floor. The respondent staggered towards the foyer, where he fell, and then someone propelled him onto the footpath. A security guard told Tyson that the respondent had slipped over. The doors of the club were then shut. After making a complaint at the Valley Mall Police Beat the respondent went to the Royal Brisbane Hospital and had his injuries attended to.

[14]

[10] The trial judge in his reasons referred to, and quoted from, the decisions of the High Court in New South Wales v Lepore and Anor [2003] HCA 4; (2003) 212 CLR 511 and of the New South Wales Court of Appeal in Starks v RSM Security Pty Ltd & Ors [2004] NSWCA 351; [2004] Aust Torts Rep 81-763, paragraphs [23] - [24]. There was also reference to the decision of the High Court in Deatons Pty Ltd v Flew [1949] HCA 60; (1949) 79 CLR 370 and the unreported decision of Helman J: Ferguson v Calnan and Ranieri [2002] QSC 342.

[15]

[11] It is obvious that the trial judge considered the reasoning of Beazley JA in Starks as particularly helpful: the relevant passage from that judgment is to the following effect:

[16]

"However, an employer would be less likely to be held vicariously liable if, in addition to unnecessary violence there were other factors such as personal animosity. In such a case, a conclusion might more readily be drawn that an attack was an independent act directed against the victim even though the employee was carrying out duties at the time.

In this case, there was no evidence that Mr Starks acted aggressively towards Mr Wilson. Counsel for the respondents relied upon this as indicating that the assault was unprovoked and had nothing to do with the employment. However, the fact that there was no evidence of aggression or other behaviour that might have provoked Mr Wilson's conduct, whilst relevant, is not determinative of whether Mr Wilson was acting in the course of his employment when he assaulted Mr Starks. Although Mr Wilson's action in head butting Mr Starks was unreasonable, uncalled for, and not a usual mode for a security officer to use to persuade a customer to leave hotel premises, the fact is, Mr Wilson acted in that way in the course of seeking to have Mr Starks leave the premises. In my opinion, his action was so directly connected with his authorised acts that this case is one that falls on that side of the line that makes the employer vicariously liable."

[17]

[12] It was after quoting that passage that the trial judge noted that the attack was "for no apparent reason"; the judgment then went on:

[18]

"Perhaps, for unexplained reasons, he felt some animosity towards them. Perhaps he was an aggressive man who got pleasure from hitting them. There was no evidence of improper behaviour on their part that might have provoked his attacks. The attack happened at work. Up until the moment of each attack, Aperu appeared to be carrying out the duties of a security guard. In Starks' case, the security officer acted as if he had a right to make Mr Starks leave the premises. Here, Aperu acted in the apparent discharge of his duties, by asking for Mr Ryan's assistance in helping someone else leave the club. In principle, there is no difference between the two situations."

[19]

[13] It is clear that the security guards employed by the applicant were clothed with actual authority to use reasonable force in certain circumstances; there is no doubt that the employer would be liable if a security guard in carrying out his duties acted over zealously or over enthusiastically in applying force to a patron. What counsel for the applicant contended was that a security guard would not be acting in the course of his employment if he gratuitously assaulted a patron.

[20]

[14] Counsel for the applicant boldly submitted that as "Lepore... did not establish any majority ratio decidendi in formulating a test to determine vicarious liability of an employer, either generally or by way of apparent authority", this case gave this Court the opportunity "to examine the limits or define the apparent authority of an employee" left undetermined by Lepore. As he put it in his written outline:

[21]

"There is therefore an opportunity for a Court of Appeal to clarify or authoritively state the law after Lepore and to provide more certainty in that area of the law."

[22]

[15] Unfortunately for the applicant I do not see this case as being the appropriate vehicle in which to explore those limits. Each case in this area of the law is very much dependant upon its own peculiar facts. It is the facts which are determinative of the present matter.

[23]

[16] Some observations of Gleeson CJ in Lepore are instructive:

[24]

"An act of intentional, criminal wrongdoing, solely for the benefit of the employee, may be easy to characterise as an independent act; but it is not necessarily so, and there are many example of cases where such conduct has been found to be in the course of employment. ... Where acts of physical violence are concerned, the nature and seriousness of the criminal act may be relevant to a judgment as to whether it is to be regarded as a personal, independent act of the perpetrator, or whether it is within the scope of employment. A security guard at business premises who removes a person with unnecessary force may be acting in the course of employment. On the other hand ... extreme and unnecessary violence, perhaps combined with other factors, such as personal animosity towards the victim, might lead to a conclusion that what is involved is an act of purely personal vindictiveness. ... An opportunistic act of serious and random violence might be different, in terms of its connection with employment, from improper touching by a person whose duties involve intimate contact with another." (paras [47] and [54]).

[25]

That reasoning resulted in his Honour saying a little earlier at [43] that "employers may be vicariously liable for such wrongdoing, even in cases where the wrongdoing constitutes a flagrant breach of the employment obligations."

[26]

[17] That reasoning is essentially a reflection of a distinction drawn, particularly by Dixon J, in Deatons Pty Ltd v Flew. In that case the hotel owner was held not liable for the conduct of the barmaid because she was not acting in the course of her employment when she threw the glass of beer into the plaintiff's face. But significantly at 381 Dixon J said:

[27]

"It is not a case of a negligent or improper act, due to error or ill judgment, but done in the supposed furtherance of the master's interests. Nor is it one of those wrongful acts done for the servant's own benefit for which the master is liable when they are acts to which the ostensible performance of his master's work gives occasion or which are committed under cover of the authority the servant is held out as possessing or of the position in which he is placed as a representative of his master".

[28]

In Lepore Gleeson CJ said at [65] that if it had been part of the barmaid's responsibilities to keep order in the bar "then presumably there would have been an increased risk that any violent propensities on her part could result in harm to customers." Where, as here, the employee is authorised to use force there must, on that approach, be an increased risk that any violent propensities inherent in the employee could result in harm to nightclub patrons.

[29]

[18] What emerges from the various judgments in Lepore is that the critical test, in broad terms, involves a comparison between the intentional wrongful conduct and the type of conduct the employee was engaged to perform. If there is a "sufficient connection" (Gleeson CJ at paras [40], [42], [52], [54], [67] and [74]), or a "sufficiently close connection" (Kirby J at paras [315], [316], [319] and [320]), or a "close connection" (Gaudron J at paras [131 and [132] and Gummow and Hayne JJ at paras [213]), it will be open to the tribunal of fact to conclude that the wrongful act was done in the course of employment, albeit in an improper mode. The connection is of critical importance, and as Gummow and Hayne JJ noted at para [217] where the opportunity for abuse becomes greater, so the risk of harm of increases. Essentially that means that where an employer clothes an employee with authority which, if abused, could lead to great harm, then (the risk being known to the employer) the easier it will be for a court to draw the conclusion that the wrongful act was done in the course of employment.

[30]

[19] Ferguson also involved an assault at a nightclub in Fortitude Valley. The second defendant, himself a security person, also employed others, including the first defendant and a man named Rex, to be security people. On the facts as found Rex first assaulted the plaintiff and then the first defendant joined in the attack. Relevantly Helman J said:

[31]

"It was the defendants' case ... that the first defendant as a doorman was authorised by the second defendant 'to use force to escort people from the premises'. It is reasonable to conclude that Rex too, as a doorman, was authorised to use force. In giving evidence the second defendant asserted that he had not authorised the first defendant to punch people seeking to enter the nightclub, but since force was authorised he will be held vicariously liable for the damage suffered by the plaintiff even for acts he did not authorise provided that they were so connected with the acts he did authorise that they may rightly be regarded as modes - although improper modes - of doing them. ... I cannot conclude on the evidence that the second defendant specifically authorised the attack on the plaintiff by Rex and the first defendant, but what they did in using force to eject the plaintiff and his companions, was, I find, within the scope of their employment and hence the second defendant is vicariously liable for their actions and for the injuries caused to the plaintiff."

[32]

It is interesting that prior to the decision in Lepore Helman J applied the test whether the acts in question were "so connected with" authorised acts as to be regarded as modes, although improper, of carrying out the employee's duty - the test favoured by the High Court in Lepore.

[33]

[20] Reference should also be made to Mattis v Pollock [2003] EWCA Civ 887; [2003] 1 WLR 2158, to which attention was drawn by Mr Egan, counsel for the respondent. It is not necessary to refer to the facts and reasoning in that case in any detail. What it highlights, in my opinion, is that the question whether or not an employer is vicariously responsible for conduct of an employee will always essentially be a question of fact. The Australian cases to which I have already referred confirm that. In Mattis it was said at 2167, referring to other English authorities, that the "focus of concentration should be the relative closeness of the connection between the nature of the employment and the particular tort". That has also been the test applied in other English authorities. It is sufficient, for example, to refer to Lord Millett in

[34]

Dubai Aluminium Co Ltd v Salaam and Ors [2002] UKHL 48; [2003] 2 AC 366 at 401 where he said: "An employer has been held to be vicariously liable for the intentional wrongdoing of his employee in a wide variety of different circumstances. ... But the circumstances in which an employer may be vicariously liable for his employee's intentional misconduct are not closed. All depends on the closeness of the connection between the duties which, in broad terms, the employee was engaged to perform and his wrongdoing."

[35]

[21] At all relevant times the respondent was acting in accordance with requests and directions from a security guard acting under ostensible, if not actual, authority. That is what put the respondent in the presence of Aperu and the other security people inside the applicant's club and which provided the situation in which Aperu could assault the respondent. The close connection between the assault and the scope of Aperu's employment was such that it was clearly open to the trial judge to find that the applicant was vicariously responsible for the conduct of Aperu. It follows that the conclusion reached at first instance was correct.

[36]

[22] Because the matter is of some importance leave to appeal should be granted, but the appeal should be dismissed with costs.

[37]

[23] JERRARD JA: This proceeding is an application for leave to appeal from a judgment in the District Court given 7 November 2005, in which the learned trial judge awarded the plaintiff Gavin Ryan damages in the sum of $37,502 with costs of and incidental to the action to be assessed on the standard basis, on the scale for judgment for less than $50,000. The appellant Ann St Holdings seeks leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967. It contends there is an important question of law of general or public importance to be determined;[1] that important point is argued to be the appropriate test to determine when an employer is a vicariously liable for a criminal offence committed by an employee. The facts of the case do raise that issue, and I would grant leave for that reason.

[38]

[24] The appellant operates a nightclub in which it employed five security guards on the evening of 24 January 2002. One of them was a man named Vaivasa Aperu, described as being of stocky build and about five foot 10 inches tall. The respondent and his friend Mr Tyson decided to visit the nightclub, arriving there around midnight, and leaving a little after 5 a.m., when affected by alcohol. The evidence of each was that they were in control of themselves, did nothing to draw any attention to themselves, and were quiet and well behaved. That was not challenged in cross-examination of either, and the appellant accepts that description. The other patrons were also well behaved, with the exception of one man, who was escorted from the premises by the security staff, and roughly handled by either two or three guards when that was being done.

[39]

[25] At about 5.20 am Mr Ryan and Mr Tyson were talking on the footpath outside the club, when Mr Aperu approached Mr Tyson and asked if he would go back inside the club and help a friend leave it. In fact Mr Aperu separately persuaded first Mr Tyson, and then the plaintiff Mr Ryan (after Mr Tyson had re-emerged) to re-enter the nightclub by himself and assist another patron, said by Mr Aperu to be in the club. Neither Mr Tyson nor Mr Ryan saw any other patrons when each re-entered; each was assaulted by Mr Aperu after he had re-entered the nightclub, and for no reason that either of those two men could describe. None were suggested to either of them in cross-examination. Mr Tyson was assaulted first, and he said that another security guard (other than Mr Aperu) was also present when Mr Tyson was called an "arsehole" by Mr Aperu and then slapped three times on the face by Mr Aperu, before being told to "fuck off". Mr Tyson said that another security staff member pushed Mr Tyson out of the club as he reached the front door.

[40]

[26] Mr Ryan was then enticed inside by Mr Aperu, on the same pretext, and he too was assaulted by Mr Aperu, who hit him heavily on the right side of the face without saying anything that Mr Ryan could recall. When the duty manager Mr Peek then walked into the bar area, he saw a number of security guards standing next to Mr Ryan, who was on the floor. Those security personnel jointly insisted to Mr Peek that Mr Ryan had slipped over, and that "nothing was going on". One of those other security guards picked Mr Ryan up off the floor, and (on Mr Ryan's evidence) one of them then propelled him onto the footpath, just as Mr Tyson had been so propelled.

[41]

[27] The learned trial judge concluded, and the appellant accepts, that Mr Aperu attacked Mr Tyson and Mr Ryan for no explained or apparent reason. The appellant company called no evidence at all of the instructions given to Mr Aperu or any other security staff. Thus:-

[42]

• The defendant admitted that it authorised Mr Aperu to apply physical force to patrons at the nightclub;

[43]

• It was conceded in argument that until the moment he did Mr Aperu was ostensibly carrying out his duties;

[44]

• There was no evidence of any reproof or intervention from the other security guards when either Mr Tyson or Mr Ryan were assaulted by Mr Aperu, and the evidence suggested they were quite untroubled by his actions.

[45]

[28] In those circumstances the issue is whether the learned trial judge was entitled to find, as the judge did,[2] that Mr Aperu's assault on Mr Ryan was directly connected with his acts authorised by his employment. In NSW v Lepore[3] Gleeson CJ (at 536) approved the test in Salmond, Law of Torts, that 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. His Honour later referred to the importance of an employee having been undertaking duties imposed on the employee by the nature of the employer's business and the nature of the employment (at 537).

[46]

[29] In Lepore Gleeson CJ wrote that an examination of the nature of the employee's responsibilities is regarded as central in Australia (at 543-544); and that for there to be a sufficient connection between what a particular (teacher/employee) was employed to do, and (sexual/criminal misconduct), for such misconduct fairly to be regarded as in the course of the (teacher's/employee's employment), it must be because of the nature of the (teacher's/employee's) responsibilities, and of the relationship with (pupils/others) created by those responsibilities, justified that conclusion (at 546). His Honour gave as an example that where the (teacher - student/employer - third party) relationship is invested with a high degree of power and intimacy, the use of that power and intimacy to commit (sexual/criminal abuse) may provide a sufficient connection between the (sexual/criminal assault) and the employment to make it just to treat such contact as occurring in the course of the employment. (I have broadened the scope of His Honour's observations to apply them to the employment contract relevant to this appeal).

[47]

[30] Both Gleeson CJ, and the joint judgment of Gummow and Hayne JJ in Lepore, referred with approval to the passage in Deatons Pty Ltd v Flew[4] where Dixon J referred to wrongful acts done for an employee's own benefit for which the employer is liable, when those are acts to which the ostensible performance of the employer's work gives occasion, or which are committed under the cover of the authority the employee is held out as possessing or of the position in which the employee is placed as a representative of the employer.[5]

[48]

[31] Gummow and Hayne JJ accepted that it was important to consider the nature and extent (the "sufficiency") of the relationship between the employee's authorised conduct and the wrongful act (at 586); but thought that adopting that as the test, or the "closeness of the connection" between the employment relationship and the wrongful act, simply restated the problem presented by the concept of course of employment (at 586).

[49]

[32] Their Honours wrote that what hitherto has been accepted as an essential aspect of the rules about vicarious liability is the requirement that the wrongdoing be legally characterised as having been done in the course of employment (at 588-589); and that it was the identification of what the employee was actually employed to do and held out as being employed to do that was central to any inquiry about the course of employment (at 592). Their Honours concluded that recovery against the employer on the basis of a vicarious liability for the intentional wrong of an employee should not be extended beyond the two kinds of cases identified by Dixon J in Deatons: first, where the conduct of which complaint is made was done in the intended pursuit of the employer's interest or in the intended performance of the contract of employment or, secondly, where the conduct of which complaint was made was done in the ostensible pursuit of the employer's business or the apparent execution of the authority which the employer held out the employee as having.

[50]

[33] Mr Kronberg, counsel for the appellant, accepted the learned trial judge's conclusion in [27] that up until the moment of each attack, Mr Aperu appeared to be carrying out the duties of a security guard. Expressing that finding in the terms of the judgment by Gummow and Hayne JJ in NSW v Lepore (at 591-592), Mr Kronberg accepted that Mr Aperu's conduct in inviting each man to re-enter the nightclub premises under what may have been entirely a false pretext was nevertheless an act done by Mr Aperu in the ostensible pursuit of the appellant's business.

[51]

[34] The defendant admitted authorising Mr Aperu to use force, and he used it on the employer's premises, and when on duty and otherwise when ostensibly acting in the course of his employment. He persuaded Mr Ryan to re-enter in the apparent execution of the authority which he was held out as having, and which placed him in a position of power in and about those premises, both in regard to Mr Tyson and to Mr Ryan. He used that power and assaulted them. The plaintiff's evidence and pleadings, and the defendant's concessions, established that up to that moment Mr Aperu was acting in the course or apparent course of his employment, and the defendant called no evidence that he acted contrary to its instructions or in excess of the authority it gave him. The tests approved by each of Gleeson C.J. and Gummow and Hayne JJ were satisfied.

[52]

[35] Gaudron J suggested in Lepore that the test was whether there was a close connection between what was done and what the employee was engaged to do. Where there was that close connection the employer would be estopped from denying that the employee was acting as his or her agent, servant, or representative (at 561). Kirby J (at 616-617) approved the "so closely connected" test suggested by Salmond. What Mr Aperu did was closely connected with his employment: he was allowed to use force on others in the course of his employment, to invite them to re-enter, and there was no direct evidence of any constraint placed by his instructions or purported authority from his employer as to the level of force authorised, or when it could be used.

[53]

[36] Callinan J took the view in Lepore that deliberate criminal conduct was not properly to be regarded as connected with an employee's employment; it is or it was the antithesis of a proper performance of the duties of an employee. I respectfully agree with Callinan J that the proposition that an employee committing a quite savage and unlawful assault was acting in the course of the employee's employment would ordinarily seem astonishing, but this matter has other quite astonishing circumstances. The plaintiff's pleadings, included, in para 6, that:

[54]

"At all times material, Mr Aperu was authorised by the Defendant, or alternatively had implied and/or ostensible authority on behalf of the Defendant, to:

[55]

(a) Apply physical force during the course of his employment and/or engagement at the said nightclub;

[56]

(b) Ensure that patrons in attendance at the nightclub premises were not exposed to the risk of damage or personal injury during the course of their patronage of the said nightclub;

[57]

(c) Encourage patrons, when appropriate, to assist their friends to vacate the said premises when the intervention of a patron might reasonably assist in such purpose."

[58]

"4. In respect of paragraph 6 of the Statement of Claim of the Defendant:-

(a) admits that Mr Aperu was authorised by the Defendant or alternatively had implied and or ostensible authority on behalf of the Defendant to do the matters referred to in paragraph 6(a), 6(b), 6(c) of the Statement of Claim; but

(b) otherwise denies that at all material times Mr. Aperu was acting within such authorisation as at all material times:-

(i) he was acting in his design to assault the Plaintiff....., or out of spite or vengeance ..."

[59]

[37] To the unqualified admission that Mr Aperu was authorised to apply physical force during the course of his employment there can be added the complete absence of evidence from the defendant of the instruction given to Mr Aperu and other security officers. Counsel for the appellant, in a careful written outline, contended that that authorisation would only be to use that level of force made lawful by the applicable provisions of the Criminal Code and the Liquor Act 1992, but that was not the defendant's pleading, nor is there any reason shown in the evidence to make that assumption. The one witness the defendant called, Mr Peek, the duty manager at the nightclub, gave evidence that he did not have a great deal to do with the supervision of the security staff, and that another person, a Mr John Hannay, instructed those employees on how Mr Hannay wanted them to operate; Mr Peek did not pretend that he knew what instructions the guards were given. His evidence really disclosed only that the other security officers on duty combined to claim, falsely, that Mr Ryan had simply slipped over and injured himself. He did not describe any of them reporting to him any of what had actually happened to either Mr Tyson or Mr Ryan.

[60]

[38] With that evidence and those pleadings, it was open to the learned judge to conclude that Mr Aperu's assault on Mr Ryan was so closely connected to the performance of his duties as to be in the course of his employment; however the test is expressed, Mr Ryan is entitled to hold his judgment. I would dismiss the appeal with costs assessed on the standard basis.

[61]

[39] FRYBERG J: I agree with Williams JA that this case does not provide a suitable vehicle in which (as counsel for the applicant put it) "to clarify or authoritatively state the law after Lepore and to provide more certainty in that area of law". I take that view for several reasons.

[62]

[40] First, counsel for the applicant did not articulate such a point of law which he could demonstrate arose on the facts of this case. He submitted that the issue at trial (and by inference on any appeal) was, "If a security guard violently attacks a patron for no good reason, can a proprietor be liable to pay damages to that patron?" It was however common ground that vicarious liability was attributed to the applicant not in its capacity as proprietor, but in its capacity as employer. If the question is rephrased accordingly, it admits of only one answer.

[63]

[41] Second, the issues which the applicant really wished to argue were predominantly, if not entirely, issues of fact. That emerged in the course of argument. The applicant submitted that Judge Brabazon's determination of vicarious liability was inconsistent in law with his finding that Mr Aperu was doing something for his own personal benefit. That finding was, the applicant submitted, embodied in the following paragraph of the reasons for judgment:

[64]

"[27] Here, Aperu attacked Mr Tyson and Mr Ryan for no apparent reason. Perhaps, for unexplained reasons, he felt some animosity towards them. Perhaps he was an aggressive man who got pleasure from hitting them. There was no evidence of improper behaviour on their part that might have provoked his attacks. The attack happened at work. Up until the moment of each attack, Aperu appeared to be carrying out the duties of a security guard. In Starks' case, the security officer acted as if he had a right to make Mr Starks leave the premises. Here, Aperu acted in the apparent discharge of his duties, by asking for Mr Ryan's assistance in helping someone else leave the club. In principle, there is no difference between the two situations."

[65]

That passage does not contain a finding that Mr Aperu was doing something for his own personal benefit. It contains an explicit finding that there was no apparent reason for the attack. The applicant submitted that the two sentences beginning "Perhaps" amounted to positive findings, made in the alternative. In my judgment they are no such thing. It was the applicant's case at trial that Mr Aperu was not attempting to conduct the business of his employer, but was simply doing something from his own personal vindictiveness, and it had sought findings to that effect. It did not get them. I am inclined to think that his Honour was correct in not making such findings, but whether that was so does not matter. The point is not one warranting the grant of leave to appeal. The applicant further submitted that if that was the correct reading of the reasons for judgment, this Court should make such findings on the basis that they were the only inferences open on the evidence. It is not appropriate to grant leave for such a purpose, particularly when one has regard to the circumstances referred to by Jerrard JA.[6]

[66]

[42] Third, His Honour's findings leave many questions of fact unanswered. That is not a criticism of his findings. They simply reflected the evidence led by the parties. Take for example the respondent's description of the events which led to his re-entering the nightclub:

[67]

"Relevantly, what was the next thing that happened?-- The next thing-----

You said you were talking to someone?-- Yeah.

Who you knew from inside the club?-- Yeah.

What happened after that?-- All I heard was the bouncer shout out towards me, in my direction, so I looked and he asked me to come over. So I came over and he said something to the effect that, 'There's another guy in there, you know, that needs a hand to get out.' So I obliged, shook his hand, went into the foyer."

Did he, meaning the bouncer, ask you to go back in?-- Yes, he did, yeah.

You say he said words to the effect, 'There's another fellow in here'------?-- 'That needs a hand to sort of get out.'

Did he indicate that you might have known this other fellow?-- Yes, I think he assumed that, yeah.

...

When this bouncer was taking you in, did he talk to you, anybody else on the way through?-- Not that I'm aware of, no.

All right. And before he invited you back inside, did you see what he was doing?-- No, I didn't.

All right. You didn't see he was chatting to somebody or was he-----?-- Not that I know of, no.

So he invited you in and he was on his own, and he took you through-----?-- I shook his hand and then he sort of followed me.

...

HIS HONOUR: Mr. Ryan, I just haven't understood about the hand shaking?-- It was just-----

I didn't first quite catch it and I don't understand how you say things happened. You were outside?-- Yeah, and I was talking and then I just got - the bouncer just sort of talked or shouted out in my direction, so I turned and he sort of, you know, asked me to come over. I went over and he said somebody was inside that needed a hand to get out, so I said, 'Yeah, no problem.', shook his hand, normal thing.

That's what I want to know. I have to say it seems to me to be not necessarily normal. Just tell me, why do you say it's normal?-- It's just something I do.

Did he introduce himself to you? Did he say, 'I'm'----?-- No, he didn't, but it's just something I've always done. As soon as I meet someone, I just shake their hand and introduce myself.

You really volunteered that, not him?-- Yes.

[68]

Despite the vagueness and oddity of that account, the respondent was not challenged about it. For its part, the applicant called only one witness. It did not call any of the security guards, nor did it call Mr John Hannay, who was apparently the owner or general manager of the nightclub and was responsible for instructing the security guards. There was no explanation for that omission and it was not suggested that the witnesses were unavailable. In the result many relevant facts are unknown. It is in my judgment most undesirable to attempt a resolution of issues arising from Lepore in such a context.

[69]

[43] I would therefore refuse leave to appeal. As a majority is of a different view, I add that I concur in the view that the appeal should be dismissed with costs. I agree generally with the reasons of Williams JA for that order.

[70]

[1] ACI Operations Pty Ltd v Bawden [2002] QCA 286; Appeal No 3970 of 2002, 6 August 2002.

[71]

[3] (2003) 212 C.L.R. 511; [2003] HCA 4; S108 of 2002, B20 of 2002, B21 of 2002, 6 February 2003.

[72]

[4] [1949] HCA 60; (1949) 79 CLR 370 at 381.

[73]

[5] [2003] HCA 4; (2002) 212 CLR 511 at 537 per Gleeson CJ; 588-589 per Gummow and Hayne JJ.

At a glance

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Judgment (73 paragraphs)

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Cases Cited (3)