Day v The Ocean Beach Hotel Shellharbour Pty Ltd

(2013) 85 NSWLR 335; [2013] NSWCA 250

NSW Court of Appeal

View on CaseLaw

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Torts
2. › Vicarious liability
3. › Independent contractors
4. › Whether hotel vicariously liable for tort of security guard employed by independent contractor
5. › Whether tortious conduct directly authorised
6. › Whether security guard agent of hotel or licensee
7. › Distinction between 'true agent' and statutory 'agent'
8. › Liquor Act 2007 (NSW), ss 77, 91
1. Torts
2. › Vicarious liability
3. › Dual vicarious liability
4. › Whether two unconnected principals can each be vicariously liable for tortious act of third person
5. › Whether Australian law admits of theory of dual vicarious liability
6. › Oceanic Crest Shipping Company v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626
1. Torts
2. › Vicarious liability
3. › Statutory vicarious liability
4. › Whether licensee directly liable under Liquor Act 2007 (NSW), s 91
5. › Whether regulatory provision creates tortious liability
1. Damages
2. › General principles
3. › Aggravated damages
4. › Exemplary damages
5. › Appeal on ground that damages inadequate
6. › High level of appellate deference
7. › Whether assessment wholly erroneous

Quick Take

A hotel or licensee is not vicariously liable for the tortious conduct of a security guard employed by an independent contractor retained to provide security services, even where the guard is an 'authorised person' under s 77 of the Liquor Act 2007. The statutory designation of a security guard as an 'agent' of the licensee for the purposes of s 77 does not make the guard a 'true agent' for vicarious liability purposes. Section 91 of the Liquor Act 2007 does not create statutory vicarious liability. Australian law does not admit of dual vicarious liability, and only the High Court could change this position.