Date: Fri, 3 Feb 2006 15:59:52 +1100

From: Neil Foster

Subject: Dual Vicarious Liability and Bouncers

Dear Jason et al;

For those interested in pursuing the question of dual vicarious liability the NSWCA decision in Whitehouse Properties t/as Beach Road Hotel v McInerney [2005] NSWCA 436 (13 Dec 2005) may be interesting. The facts are almost identical to Hawley: customer at hotel injured by over-enthusiastic bouncer; is the hotelier liable, or the company employing the bouncer contracted to the hotelier, or both? In Whitehouse Properties Brownie AJA rules that "both" - is the answer - not because the bouncer had 2 employers, but because (1) the bouncer was the employee of the security firm, but (2) he was under the detailed day-to-day control of the hotelier, and hence (?) there were "special circumstances" that made the hotelier vicariously liable (quoting at para [23], believe it or not, Quarman v Burnett (1840)!) The judgement is not an ornament to NSW jurisprudence, sadly, for that and other reasons. Neither counsel nor the Court seem to have been aware of Viasystems (handed down on 10 October 2005), although given my own view of that case perhaps it was just as well.

The sad thing is that the Court were virtually forced into contortions over vicarious liability because it was necessary for the plaintiff that the action be one in trespass to the person, rather than negligence (because the damages would have been reduced if the provisions of the Civil Liability Act 2002 applied, as they do to negligence but do not to "intentional" torts) - see para [8]. {An action in negligence against the hotelier for failure to train or supervise the bouncer would probably have been more "natural".}

For those interested in assessment of respective fault in contribution proceedings, there is a discussion at [27]-[40] of how the damages should be carved up between the two parties who were both vicariously liable. Since the court were not following Viasystems they did not feel obliged to say that a 50/50 split was obligatory. 80% responsibility was cast onto the hotelier who was "on site" when the incident occurred.

Regards
Neil Foster

Neil Foster
Lecturer & LLB Program Convenor
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> Jason Neyers 3/02/06 4:00 >>>

Colleagues:

I just read Hawley v. Luminar Leisure (brought to our attention by Andrew Dickinson) which, attempts to apply Viasystems. As was noted by Andrew, the court found in favour of the imposition of vicarious liability solely upon the owner of a nightclub, the temporary employer of a nightclub bouncer who assaulted the claimant, rather than for dual vicarious liability.

I have to say that the courts attempted application of the reasoning in Viasystems seems off to me (see [82-85]). If the test employed from Viasystems is May LJ’s test “who is entitled to control” I have difficulty understanding how the foreman provided by the general employer is not a person who is “entitled” to control. Likewise, if the test employed is Rix LJ’s “organizational test” I fail to see how lending out a temporary employee is not also an integral part of a temp service’s business.

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