By Louise Cantrill, Partner, Tamara James, Associate and Melanie Farry, Lawyer

This case involved allegations against a security guard for injury incurred by the plaintiff during an incident in which the plaintiff intervened in an altercation leading to the security guard falling backwards on top of her and breaking her ankle.

Mills Oakley successfully defended the claim on behalf of Urban Protection Group Pty Ltd (Urban), a company with which Debilu Ltd t/as Ravesis on Bondi Beach (Hotel) contracted for the provision of security guards and radio equipment. Urban contracted with Ample Security Service Pty Ltd t/as Dark Haus Security (Dark Haus) for the guards which were assigned to the Hotel and other venues contracting with Urban.

The case is a reminder of the importance of ensuring pleadings adequately reflect the case that a party wants to run, and ensuring experts have been adequately briefed with relevant material for their opinions to be accepted. It also confirms again that only one party can be vicariously liable for the actions of another.

Facts

The plaintiff brought a claim against the Hotel and Urban and later joined Dark Haus to the proceedings for damages for personal injuries suffered by her on the evening of 30 July 2022 at the Hotel.

The events that led up to the plaintiff’s injuries involved three individuals, namely the plaintiff, a security guard (Security Guard) and a male patron (referred to as the person of interest or POI). The Security Guard approached the POI after receiving a complaint from other hotel patrons in relation to alleged harassing behaviour. The Security Guard made a radio call for back up, following which the POI headbutted the Security Guard and started assaulting him.

The plaintiff intervened by wrapping her arm around the Security Guard and attempting to pull the Security Guard backwards during the scuffle with the POI. This led to all three individuals falling, with the plaintiff on the bottom and the POI on top. During the fall, the plaintiff suffered a fractured right ankle. CCTV footage clearly demonstrated the sequence of events which His Honour set out in judgment.

The Plaintiff alleged that the Hotel, Urban and Dark Haus were negligent for failing to, inter alia:

1. respond to two complaints made by her;
2. have sufficient security staff on site;
3. evict someone who was obviously intoxicated and/or quarrelsome; and
4. de-escalate a hostile situation.

The plaintiff further alleged that Urban and Dark Haus were both vicariously liable for the conduct of the security guard for his negligence.

Findings

The Hotel

Neilson DCJ found that a significant number of the allegations made by the plaintiff in her pleadings were not supported by the evidence. For example, the CCTV footage did not support a number of the factual allegations and there was no evidence to suggest that the number of guards rostered on for the time that the plaintiff attended the Hotel was insufficient.

What was obvious on the evidence, but not pleaded, was that response times by both the security guards and the Hotel management were significantly long (in excess of 1 minute). Had the security guards and the Hotel responded promptly and within the industry expectation, the plaintiff would likely have been prevented from getting involved in the altercation (if not preventing the altercation altogether). Neilson DCJ held that the plaintiff would have succeeded against the Hotel had her claim been properly pleaded. However, this failure to properly plead was fatal to the plaintiff’s case against the Hotel.

Urban

The plaintiff did not succeed against Urban as a result of a number of factors.

Firstly, His Honour did not consider the Security Guard’s actions to be negligent. His Honour was critical of the evidence given by the liability expert retained by the plaintiff as the expert made a large number of generalisations based on the fact that the plaintiff was injured and opinions he reached were at odds with the evidence at hand. His Honour preferred the evidence of the liability expert retained by Urban. Based on His Honour’s review of the CCTV footage and given his views on the expert evidence, the conduct of the Security Guard in handling the POI was reasonable and not negligent.

Secondly, it was obvious from the evidence that the Hotel was intrinsically involved in the security arrangements, including dictating the number of security personnel to be provided by Urban and controlling security on site such as requiring all evictions from the premises to be carried out with an employee from the Hotel present. Further, His Honour noted the security policies and procedures appeared to have been a joint effort between Urban and the Hotel, providing further evidence of the Hotel’s intrinsic involvement. On that basis, it could not be said that the Hotel had delegated control of the security services to Urban beyond the provision of the security guards as the Hotel retained control of the on-site conduct.

Thirdly, the plaintiff alleged that there was a failure by Urban to have crowd control guidelines. His Honour was satisfied that all of the security guards were licenced and, as part of the training programs required for licencing, had all been trained in crowd control techniques. There was no evidence adduced by the plaintiff to support an allegation that any guidelines would have prevented either the attack by the POI or the involvement of the plaintiff. The further allegation that Urban had breached the Security Industry Act 1997 was also left unsatisfied on the basis that there was no evidence to support that any alleged failure by Urban to comply with the regulatory legislation was, or could be, causative of the plaintiff’s injury.

Finally, His Honour went on to consider who would be vicariously liable for the Security Guard’s conduct. The Security Guard (and other security personnel) was employed by Dark Haus. However, the pleadings alleged that Dark Haus was vicariously liable for the acts of the Security Guard and that Urban was also vicariously liable for the acts of the Security Guard. His Honour rejected this allegation, noting that the plaintiff did not allege transfer of employment and dual vicarious liability is not available. The plaintiff had also tried to plead that the Security Guard was acting as an agent for Urban but His Honour found there was insufficient evidence to support this allegation.

Key Takeaways

Pleading your case

The findings of Neilson DCJ serve as an important reminder that parties must take care to ensure that the claim is properly pleaded. Had the plaintiff properly pleaded her case, the plaintiff would have likely been successful in her claim against the Hotel.

Dual vicarious liability

In circumstances where the plaintiff pleaded that both Dark Haus was vicariously liable for the acts and/or omissions of the security guard and that the security guard was either an employee or, alternatively, “acting as an agent” of Urban, Neilson DCJ reaffirmed as a matter of principle that dual vicarious liability is not available, particularly where one party is the employer and the other is said to be (in the alternative to employer) a principal via agency. In any event, the argument that Urban was liable for the negligence of employees of Dark Haus failed for the reasons explored above.

Briefing experts

The current case also highlights the importance of comprehensively briefing experts. Where experts are not provided with all relevant materials, such as complete medical records, their opinions may be given little weight or may not be accepted at all. In the present matter, Neilson DCJ rejected the evidence of the plaintiff’s consultant forensic psychiatrist as the history provided by the plaintiff was unreliable (which the expert relied upon) and the documents reviewed by the expert were limited. On this basis, even if the plaintiff had succeeded, the assessment of damages would have been significantly reduced as a result.