By James Atkinson
A patron has failed to convince New South Wales' highest court that a pub was liable for injuries she suffered as a result of an assault by a security guard.
In July 2008, the licensee of The Ocean Beach Hotel in Shellharbour, NSW formed the view that the patron was intoxicated, and instructed a security guard to remove her from the premises.
The security guard, who was an independent contractor, did so by pulling the stool on which the patron was seated out from under her, causing her to fall on the floor and injure herself.
In an earlier ruling, the District Court found that the security guard had committed an assault and battery on the patron and the guard's employer Checkmate Security International was vicariously liable.
However, Checkmate had since been deregistered as a company and ceased to exist.
As such, the patron sought to fix vicarious liability on The Ocean Beach Hotel or its licensee.
This approach was rejected by the District Court and again by the New South Wales Court of Appeal in a decision handed down on August 5 this year.
"It was clear that [the security guard] represented Checkmate," said Supreme Court Justice Arthur Emmett.
"He was wearing Checkmate's uniform, which prominently displayed its mark. It was a condition of the hotelier's licence that security guards be 'uniformed', which is to say, identified as not being hotel employees," he said.
Justice Emmett said there was nothing in general law to establish vicarious liability on the part of the hotel or its licensee for the security guard's actions.
And he agreed with an earlier ruling that the relevant section in the Vicarious Liability Act "had nothing to say about the liability the hotel may have when a security guard, not directly employed by it, used excessive force in carrying out a task".
The patron's appeal was dismissed.
This ruling itself opens up a can of worms, as a precedent it follows that any company may offload its responsibility to a “Straw company or 3rd party who may be set up to carry liability / take the fall.
Unless the government mandates that all companies have insurance that is checked by any person on behalf of the company who is offer the contract out and it is the responsibility of the giver of the contract to ensure that this insurance is at all times maintained and proper training and practices are followed, and if any breeches are mad the liability falls back on the person who awards the contract. It cannot be passed off nor should it.