Australia: hotel not liable for security guard

Michael Wukoschitz's picture

The appellant was a patron at the respondent Hotel on the night of 4 July 2008. The manager on duty that night formed the view the appellant was intoxicated, and after speaking with the Hotel's licensee, instructed a security guard to remove her from the premises. He did so by pulling the stool on which the appellant was seated out from underneath her. The appellant fell to the floor and was injured. The security guard was employed by a company called "Checkmate".

The primary judge found that the security guard had committed an assault and battery on the appellant for which his employer Checkmate was vicariously liable. However (because Checkmate had ceased to exist), the appellant sought to fix vicarious liability upon the Hotel or its licensee.

The appelate court held that

  • The security guard was not expressly authorised to commit the assault and battery. The findings of the primary judge, that neither the Hotel's duty manager nor its licensee were on the spot when the incident occurred, and that all that was authorised was the appellant's removal, were amply open on the evidence;
  • The security guard was not the Hotel's agent, properly so-called. He had no authority to bind the Hotel, and it was clear that he represented Checkmate, not the Hotel; and thus
  • None of the exceptions relied upon applied to make the Hotel or the licensee vicariously liable for the tort committed by the security guard.

Judgement of Aug. 5, 2013 in case Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250 available here>>.

 

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