QBE v Orcher; Bowcliff v Orcher

[2013] NSWCA 478

NSW Court of Appeal

View on CaseLaw

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Negligence
2. › Duty of care
3. › Occupiers of licensed premises
4. › Duty to prevent harm to patrons from employees
5. › Whether security guard breached duty by failing to prevent untrained employee from intervening in altercation
6. › Whether evidence sufficient to establish breach
7. › Civil Liability Act 2002 (NSW), s 5B(2)
1. Negligence
2. › Breach of duty
3. › Licensed premises
4. › Non-intervention by security personnel
5. › Whether failure to prevent employee crossing road to intervene in dispute constituted breach
6. › Whether circumstances known to security guard required intervention
1. Appeal
2. › Appellate review of findings of fact
3. › Inferences drawn from documentary evidence
4. › CCTV footage
5. › Whether appellate court in as good a position as trial judge to draw inferences
6. › Supreme Court Act 1970 (NSW), s 75A
1. Vicarious liability
2. › Employee of independent contractor
3. › Whether employee of security company subsumed into hotel's security system
4. › Direction and control test
5. › Whether substantially complete transfer of control established

Quick Take

Where liability of occupiers of licensed premises depends on the conduct of security personnel, the evidence must establish what the security guard actually knew or ought to have known about the circumstances requiring intervention. CCTV footage alone, where unclear, may be insufficient to establish breach. The inquiry into breach is prospective, not retrospective, and a security guard's exercise of professional judgment in deciding not to intervene is relevant to the assessment of breach under s 5B of the Civil Liability Act 2002 (NSW).