Ryan v Ann St Holdings Pty Ltd
[2005] QDC 345
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Ryan v Ann St Holdings Pty Ltd[2005] QDC 345
- Add to List
Ryan v Ann St Holdings Pty Ltd[2005] QDC 345
Ryan v Ann St Holdings Pty Ltd[2005] QDC 345
![Ryan v Ann St Holdings Pty Ltd [2005] QDC 345](/judgmentview/image?name=316233.001.png&id=316233)
DISTRICT COURT OF QUEENSLAND
CITATION: | Ryan v Ann St Holdings Pty Ltd [2005] QDC 345 |
PARTIES: | GAVIN PATRICK RYAN Plaintiff v ANN ST HOLDINGS PTY LTD Defendant |
FILE NO: | BD 4689 of 2004 |
PROCEEDING | Trial |
DELIVERED ON: | 14 November 2005 |
DELIVERED AT: | Brisbane |
HEARING DATES: | 7 November 2005 |
JUDGE: | Judge Brabazon QC |
ORDER: | Judgment for the plaintiff. |
CATCHWORDS: | TORT – Vicarious liability of employer – Whether an employer can be vicariously liable for an unauthorised and illegal act of its employee – Where a security guard struck a patron in an unprovoked attack on the employer’s premises. Deatons Pty Ltd v Flew (1949) 79 CLR 370 Ferguson v Calnan & Ranieri [2002] QSC 342 New South Wales v Lepore (2003) 213 CLR 511 Starks v RSM Security Pty Ltd and Ors [2004] NSWCA 351 |
COUNSEL: | Mr G Egan for the plaintiff Mr P Kronberg for the defendant |
SOLICITORS: | Jonathan C Whiting & Associates for the plaintiff Trevor Watt & Associates for the defendant |
The Issue
- [1]This case is about the responsibility of a nightclub proprietor for the actions of its security staff. If a security guard violently attacks a patron for no good reason, can the proprietor be liable to pay damages to that patron?
The Facts
- [2]In January 2002 The Beat nightclub, in Fortitude Valley, stopped trading at 5 a.m. There was then a period of 30 minutes grace for patrons to finish their drinks. They were all expected to be off the premises by 5.30 a.m. At around 5.15 a.m., the lights would be turned up, the music turned off, and the dance floor lights turned off, as the signal that it was time to leave.
- [3]On the evening of 24 January 2002, The Beat employed five security guards. One of them was an Islander by the name of Vaivasa Aperu. He had a stocky build and was about 5ft 10in tall.
- [4]Mr Ryan and a friend, Mr Philip Tyson, decided to visit the nightclub. They first went to a hotel where they had a couple of drinks. They arrived at the nightclub at about midnight. By 5 a.m. 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.
- [5]They say that the other patrons were also well-behaved, with the exception of one man, who was escorted from the premises by security staff. That man was roughly handled by two or three guards. His arms were held as he was walked out of the club.
- [6]The two men could identify who were security guards because of their black uniforms and their distinctive badges.
- [7]At about 5.20 a.m. they both left the club and stood talking on the footpath. Other people were involved in the conversation. One of the security guards approached Mr Tyson. He did not know the guard but later learned that his name was Vaivasa Aperu. Aperu asked Mr Tyson if he would go back inside and help a friend leave the club. Mr Tyson did that, but he saw no other patrons in the club. Mr Aperu then ordered him to sit down. He did that. Another security guards was standing behind him. Aperu said to Mr Tyson that he was “an arsehole”. His manner was threatening.
- [8]Mr Tyson was alarmed. He said to Aperu that he was a pacifist and did not want any trouble. Aperu then slapped him three times on the face, before telling him to “fuck off”. He got up and left. Another of the security staff pushed him out of the club, as he reached the front door.
- [9]Aperu then went out onto the footpath. Mr Ryan had not seen his friend go into the club, and then come out again. Aperu called out and attracted his attention. He asked him for help with another patron who was inside. The effect of the guard’s request was that some acquaintance of Mr Ryan’s needed assistance. Mr Ryan shook has hand, and agreed to go with him. He ushered Mr Ryan back into the club, towards the rear of the bar area.
- [10]Mr Ryan did not see anyone there. He went to leave. Aperu was the only person close to him. A young woman was at the front of the club, closing up. They had passed about three security guards on the dance floor, some distance away. Aperu hit him heavily on the right side of the face. The blow knocked him to the ground, where he was unconscious for a time. While he was lying unconscious, the duty manager, Jason Peek, who had been closing up elsewhere in the building, walked into the bar area. The other security guards were then standing near Mr Ryan. He asked what was going on. He could see blood on Mr Ryan’s face and shirt. The guards said that he had slipped over. He expressed doubt about that explanation. The guards insisted that he had slipped over, and that “nothing was going on”.
- [11]Mr Peek gathered up the security register and the security video after Mr Ryan had left the club. When he left the club, he gave them to police at their office in the Valley Mall. The security register was meant to show the security guards on duty at the time. It has a page for “incidents”. That page is not in evidence here.
- [12]Mr Ryan was picked up off the floor by another security guard. He staggered towards the foyer, where he fell, or was pushed over. He stood up, or was picked up. He then hit the front door. Someone propelled him onto the footpath, where Mr Tyson stopped him going out onto the roadway. The young woman at the front door and a security guard told Mr Tyson that he had slipped over. They appeared not to want to know any more about the matter. They shut the doors.
- [13]Mr Ryan recalls that someone escorted him up to the footpath. It was not Aperu.
- [14]Mr Ryan and Mr Tyson went to make a complaint at the Valley Mall Police Beat. They then went to casualty at the Royal Brisbane Hospital. Mr Ryan had a cut to his face, two teeth had been knocked out, and another tooth was damaged. He was bleeding around the face. He felt that one of his kidneys was bruised. That may have happened as he crashed into the front door on his way out.
The Security Guards
- [15]The evidence did not contain any complete description of the duties of the security guards. Mr Peek explained that Mr John Hannay was responsible for the hiring and firing of security staff, and that he spoke to them on a very regular basis, daily, about how he wanted them to operate and do their jobs. Another man called George Latzavis was also in charge of security, but he was not on duty on this night.
- [16]As the duty manager, he had a responsibility to supervise the security guards. He did not have a great deal to do with the overall supervision of the security staff. However, he thought that he would have spoken to the security guards, in effect, saying that they were to come and tell him straight away about any incidents that occurred.
- [17]It may be safely assumed that the security guards’ basic task was to protect the club, the club staff and the club’s patrons from any patron who was unruly or disorderly. Mr Ryan was no doubt right to describe the incident about the patron being thrown out earlier on, as “a normal sort of thing”. That was an example of the security guards using some force to get rid of a patron. Mr Peek said that he could not recall such an incident, as he dealt with many incidents, and it was only the severe incidents that would stick in his mind. He agreed 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. He accepted that he had a duty of care to make sure that he looked after the patrons on the premises.
- [18]The security guards’ duties included seeing that the patrons left the club in an orderly way by 5.30 a.m. Some would be inside, while some would be at the front door. They also helped with looking after the rubbish, and carrying the bins outside.
- [19]Mr Peek explained that there would be no admittance to the club after 5 a.m. When someone left, they did not usually return. However, there might be an exception in a case where, say, someone had left a wallet or clothing inside. It was expected that a 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. If it were not 5.30 a.m., it would be in order to allow such a person to quickly go back inside to look for the property. That person would then have to return to the front door before 5.30 a.m.
- [20]Mr Peek said that he did not recall any specific conversation, with the security staff, about not inviting patrons back inside after they had left. Apart from the case of the missing property, he could not see a reason why they would want to invite someone back into the premises. He had not specifically told the security guards not to invite people back, and he would be surprised if one of them had done that. If a security guard invited someone back inside to assault them, and the other staff members saw that happening, then he hoped that they would stop the assault. He had not given the security guards any such instructions to that effect. He said that it was Mr John Hannay’s task to give the security guards their instructions. Mr Hannay was not called as a witness. Mr Peek would not agree with the suggestion, that he had not adequately instructed the security guards as to what they should do in the event of one of their colleagues using excessive force on a patron.
- [21]If patrons could return to collect their belongings, then it should be accepted that they might return to help a friend or acquaintance in difficulties. With alcohol being served until 5 a.m., it would not be surprising if some drunk or sick patrons needed assistance from time to time to leave the premises. It would no doubt be in order for a security guard to alert another patron to the need to give that assistance to a friend or associate. That would be part of the duty to see all patrons off the premises in an orderly way.
The Course of Employment
- [22]When Aperu hit Mr Ryan, he intentionally committed a criminal act. There was no excuse for it. Undoubtedly, he would be liable to pay damages to Mr Ryan. But he is not a party to these proceedings. Mr Ryan sues his employer. The question is whether the employer is liable for its security guard’s actions.
- [23]The basic principles are not in doubt. Recently the High Court of Australia undertook an extensive survey of them. In New South Wales v Lepore (2003) 213 CLR 511, the High Court was considering three different appeals about the liability of state governments for the conduct of teachers who sexually assaulted pupils at school. Some statements by the Chief Justice about vicarious liability are the starting point:
“An employer is vicariously liable for a tort committed by an employee in the course of his or her employment. The limiting or controlling concept, course of employment, is sometimes referred to as scope of employment. Its aspects are functional, as well as geographical and temporal. Not everything that an employee does at work, or during working hours, is sufficiently connected with the duties and responsibilities of the employee to be regarded as within the scope of the employment. And the fact that wrongdoing occurs away from the workplace, or outside normal working hours, is not conclusive against liability.
The antithesis of conduct in the course of employment is sometimes expressed by saying that the employee was ‘on a frolic of his own’. (He referred to the tendency, in days before motor vehicles, of coachmen to drive off with an employer’s coach `upon a frolic of his own’ and sometimes to injure a passerby.) The employment connection was regarded as too remote to make the employer vicariously liable to the passerby for the injury caused by the coachman.
The best known formulation of the test to be applied is that in Salmond, Law of Torts (1907) – an employer is liable even for unauthorised acts if they are so connected with authorised acts that they may be recognised 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. ….
To hold an employer liable for negligent acts of an employee is usually uncontroversial; negligence involves performing in a lot of tasks carelessly rather than carefully. Intentional and criminal wrongdoing, engaged in solely for the benefit of the employee, presents a more difficult problem. Even so, employers may be vicariously liable for such wrongdoing, even in cases where the wrongdoing constitutes a flagrant breach of the employment obligations …
An act of intentional, criminal wrongdoing, solely for the benefit of the employer, may be easily characterised as an independent act; but it is not necessarily so, and there are many cases of examples where such conduct has 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 the 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. Sexual abuse, which is so obviously inconsistent with the responsibilities of anyone involved with the instruction and care of children, in former times would readily have been regarded as conduct of a personal and independent nature, unlikely ever to be treated as within the course of employment. Yet such conduct might take different forms. 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. … Yet it has long been intended that some forms of intentional criminal wrongdoing may be within the scope of legitimate employment. Larceny, fraud and physical violence, even when they are plainly in breach of the express or implied terms of employment, and inimical to the purpose of that employment, may amount to conduct in the course of employment. …”
- [24]It is convenient to turn from the extensive judgments in the High Court to a later decision of the New South Wales Court of Appeal. In Starks v RSM Security Pty Ltd and Ors (2004) NSW CA 351, that court had to consider an employer’s liability for the act of a security guard. Mr Starks was a patron at the Bondi Hotel. Curiously, he was himself also a security officer. There was a conversation between himself and a security guard. The guard told him that he was too drunk and he had to leave. Mr Starks protested, to the effect that he was simply playing a video game on a coin-operated machine, and was not doing anything wrong. He said that he just wanted to finish his game and then go home “like I’ve done for nearly two years”. He took out his Security Officer’s Licence to show it to the security guard. As he was putting the licence back in his wallet, the guard head-butted him, striking him in the jaw and the mouth and knocking him unconscious.
- [25]The guard was later charged with assault and pleaded guilty. The Court of Appeal had to decide if the assault was in the course of employment. The court accepted that there was no reason for the guard to have acted in the way he did. Even if he believed that Mr Starks was affected by alcohol, there was not the slightest indication that he was threatening the security guard, or causing any problems. The attack came out of the blue. He had requested Mr Starks to leave the hotel. That was part of his job, if the circumstances called for it.
- [26]In paragraphs 23-24, Beazley JA (with whom the other two members of the court agreed) said this:
“… 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.”
- [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.
- [28]It is necessary to return to the High Court’s decision in Lepore’s case. In particular, the joint judgment of Gummow and Hayne JJ points to the significance of an employee’s acts done in the apparent execution of authority which the employer holds out the employee as having. Their discussions concerned the earlier decision of the High Court in Deatons Pty Ltd v Flew (1949) 79 CLR 370. There, a barmaid threw a beer glass in the face of a drunken and abusive customer at the bar. The owner of the hotel was held not to be vicariously liable, because the assault was not committed in the course of her employment. She was not employed to keep order in the bar. Rather, her attack was a gratuitous retaliation for abuse from the customer. As Dixon J put it:
“The barmaid’s action was not a negligent or improper act, due to error or ill judgment, but done in the supposed furtherance of the master’s interests. Nor was it one of those wrongful acts done for the servant’s own benefit for which the master is liable when their acts to which the ostensible performance of his master’s work gives occasion of 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.” (at page 381)
- [29]On the basis of that judgment, Gummond and Haine JJ put the matter this way:
“…there are two elements that are revealed by what Dixon J said that are important for present purposes. First, vicarious liability may exist if the wrongful act is done in intended pursuit of the employer’s interest or in intended performance of the contract of employment. Secondary, vicarious liability may be imposed where the wrongful act is done in ostensible pursuit of the employers business or in the apparent execution of authority which the employer holds out the employee as having.
What unites those elements is the identification of what the employee is actually employed to do or is held out by the employer as being employed to do. It is the identification of what the employee was actually employed to do and held out as being employed to do that is central to any inquiry about course of employment… In Deatons’ the barmaid who through the glass did so in retaliation for a blow and an insult, not in self defence and not in any way in the supposed furtherance of the employer’s interest (whether in keeping order in the bar or otherwise). Nor, … was it a case where the act done was one to which the ostensible performance of the employer’s work gave occasion or which was committed under cover of the authority the employee was held out as possessing, or of the position in which the employee was placed as a representative of the employer… The commission of a fraud can seldom be said to have been in the intended performance of the employee’s duties. In those cases, however, it will often be the case of what was done by the employee was done in the apparent execution of authority, actually, or ostensibly, given to the employee by the employer….”
- [30]In my opinion, those remarks are significant here. In this case, in leading Mr Ryan back into the club, the security guard was acting in the apparent execution of authority which he did have. When he turned on Mr Ryan and struck him, his action was directly connected with his authorised acts.
- [31]The whole purpose of employing a security guard is that he or she should be capable of using force when circumstances require that. The use of force is authorised by the employer. It is part of the guard’s course of employment. See Ferguson v Calnan & Ranieri [2002] QSC 342 at [13].
- [32]In this case, the employer should be held liable for the consequences of Aperu’s conduct. There is a finding of vicarious liability.
- [33]There was also an allegation of actual negligence on the defendant’s part. However, the facts do not demonstrate negligence. It is true that the facts show that Aperu and the other security guards were prepared to say that he tripped over, and that he was callously treated by being ejected onto the footpath, with no regard to his injuries, at a time when Mr Peek realised he should go to the police. However, there is not enough to show that management knew, of should have known, that he would behave so badly.
Damages
- [34]There is not much controversy about the damages that he is entitled to. His out-of-pocket expenses for medical and pharmaceutical expenses and the like are agreed at $1,219.50.
- [35]There is no claim for past economic loss. Mr Ryan had been working in a family business, which ran a restaurant, and the others covered for him while he was away.
- [36]Mr Ryan has a denture with two false teeth at the present time. That has caused him a good deal of annoyance and embarrassment. He is a single man. The first embarrassing incident came when he was having dinner with a young woman and the denture broke at the dinner table. He did not welcome having to put the denture in and out of his mouth. It is understandable that he felt awkward about having to do that sometimes in the presence of a girlfriend. Those feelings have made him more reclusive, especially in social relationships. He is still a single man.
- [37]So far, he has not had enough money to have his teeth properly repaired. He has been advised to have the two missing teeth replaced with implants. Modern surgery allows that to be done, by inserting screws into the jaw, which become fixed as the bone grows around them. After repair of the gum, complete crowns can then be screwed on. They are permanent. It is better that he have that surgery as soon as possible. The complete process to replace the two teeth will cost about $14,500, and cause him, overall, to take about two weeks off work. The first step is surgery under general anaesthetic, with one week as the recommended time away from work. There will be a good deal of discomfort.
- [38]He is presently taking home $500 a week from the restaurant business. He should be allowed $1,000 for the two weeks. There will be a superannuation loss, at 9 per cent, of $90.
- [39]Dr Andrew McMillan, his oral surgeon, explained that the two crowns were long lasting, but that he might expect to have to replace them during the rest of his life. Each crown costs about $2,500. The replacement of both crowns, which Dr McMillan thought might be reasonable, would be $5,000. But the replacement would be well into the future – at around the thirty year mark, according to Dr McMillan. It would be appropriate to make an allowance of $1,200, assuming a discount rate of 5%.
- [40]He has had a broken tooth repaired with a partial crown. That is not so stable, and will need more frequent repair. It is reasonable to allow $3,500 in that respect.
- [41]His injuries would have caused him shock and a good deal of pain and suffering. The loss of two and a-half teeth is a significant injury. There will be more discomfort when Dr McMillan replaces the missing teeth. That should be a good result, but it is really making the best of a nasty injury.
- [42]For his pain and suffering and lost ability to enjoy life, especially during the early days of the injury, he should be awarded the sum of $15,000. Of that amount, $10,000 should be attributed from the date of injury to the present time.
- [43]The conventional awards of interest should be made. That is to say the $10,000 of his general damages up to trial should carry the usual 2 per cent interest over the 3.8 years that has passed. That is $760.
- [44]The usual 5 per cent interest on his special damages should also be allowed, for the 3.8 years. That is an amount of $232.
- [45]Therefore, the damages can be summarised this way:
Pain and suffering $15,000.00
Interest on pain and suffering $ 760.00
Special damages $ 1,220.00
Interest on specials $ 232.00
Future economic loss $ 1,000.00
Future superannuation loss $ 90.00
Future medical expenses – crowns $14,500.00
replacement crowns $ 1,200.00
replacement facings to crown $ 3,500.00
Total $37,502.00
The Orders
- [46]There will be judgment for the plaintiff against the defendant in the sum of $37,502.00.
- [47]The Civil Liability Act does not apply to this litigation. The Personal Injuries Proceedings Act applies generally. However, s 6(4) of that act says that s 56 does not apply to personal injury caused by an unlawful intentional act. Section 56 sets out special rules about costs – see s 56(3)(b), that applies to judgements in the $30,000 - $50,000 range. As the rules do not apply, the plaintiff cannot take advantage of them. It is not suggested that any special costs rules in the Uniform Civil Procedure Rules apply in this case.
- [48]These are the appropriate orders: