Canada: Two interesting Decisions From Oz On Vicarious Liability

The first arose from that favourite Australian pastime, drinking: Day v The Ocean Beach Shell Harbour Pty Ltd, [2013] NSWCA 250. Julia Day was deemed by a security guard at the Ocean Beach Hotel to be intoxicated. The security guard pulled the barstool out from underneath Ms Day, who fell to the ground and was injured. The New South Wales trial judge found that Checkmate (the company engaged by the hotel to provide security services) was liable for the assault and battery committed by its employee, and awarded damages totaling AUS$10,000. By that point, however, Checkmate had gone out of business, so Day pursued a claim against the hotel which had contracted for the services of the guard and the licensee of the bar, alleging that they were vicariously liable (a claim rejected by the trial judge). She also challenged the damages awards as inadequate. Her appeal was dismissed. The security guard was not authorised to commit assault and battery, only to eject intoxicated patrons; he was not the agent of the hotel, having no authority to bind it and representing Checkmate only. The licensee was off the hook by virtue of provisions of the liquor licensing statute. The damages award was left alone. In a side comment, Leeming JA noted that Australian law precludes a finding of dual vicarious liability under which two different defendants can be liable for the tortious act of a third person (rejecting the acceptance of such a theory in English law).