STARKS v. RSM SECURITY PTY. LTD. & ORS. [2004] NSWCA 351

Reported Decision : (2004) Aust Torts Reports 81-763

New South Wales Court of Appeal

CITATION : STARKS v. RSM SECURITY PTY. LTD. & ORS. [2004] NSWCA 351 HEARING DATE(S) : 18 August 2004 JUDGMENT DATE : 28 September 2004

JUDGMENT OF : Sheller JA at 1; Beazley JA at 2; Grove J at 47 DECISION : 1. Appeal allowed in part and dismissed in part.; 2. Set aside verdict for the second defendant (first respondent).; 3. Verdict for the plaintiff as against the second defendant, judgment accordingly.; 4. Verdict for the third and fourth defendants (second and third respondents) affirmed.; 5. Set aside the costs order below in favour of the respondents.; 6. First respondent to pay appellant's costs of the appeal and of the hearing at first instance.; 7. The second and third respondents to bear their own costs of the appeal and in the Court below, except to the extent that they separately incurred costs in the preparation of the case at first instance and on the appeal that were not incurred in common with the costs incurred by the first respondent. The appellant is to pay any such separately incurred costs.

CATCHWORDS : TORT - Vicarious liability of employer - Circumstances in which an employer can be vicariously liable for an unauthorised and illegal act of its employee - Employer not liable for a wrongful act of an employee committed "on a frolic of his own" - TORT - Vicarious liability for acts of an independent contractor - the principal exercising control over independent contractor independent contractor acting as "representative" of the principal. - STATUTORY CONSTRUCTION - Liquor Act 1982 - Statutory obligation imposed upon licensee - Non-delegability of obligation under Act does not render it non-delegable for the purposes of tort law. - STATUTORY CONSTRUCTION - Liquor Act 1982, s.103 - Use of excessive force in tasks authorised by section - Section has nothing to say about liability of a licensee for use of excessive force by a third party not directly employed by it. LEGISLATION CITED : Liquor Act 1982 (NSW) Supreme Court Act 1970 (NSW) Canadian Pacific Railways Co v. Lockhart (1942) AC 591 Colonial Mutual Life Assurance Society Limited v. Producers and Citizens Co-Operative Assurance Co of Australia (1931) 46 CLR 41 Deatons Pty. Limited v. Flew (1949) 79 CLR 370 Gee v. NWQ Management Pty. Limited & Ors. [2002] NSWCA 77 CASES CITED : Hollis v. Vabu Pty. Limited (2001) 207 CLR 21 Morris v. C.W. Martin & Sons Limited [1966] 1 QB 716 North Sydney Leagues Club Limited v. Berecry & Ors. (2002) NSWCA 154 Northern Sandblasting Pty. Limited v. Harris (1997) 188 CLR 313 State of New South Wales v. Lepore [2003] 212 CLR 511 Stevens v. Brodribb Sawmilling Co Pty. Limited (1986) 160 CLR 16 Byron Starks (Appellant) PARTIES : RSM Security Pty. Ltd. (First Respondent) Hotel Bondi Pty. Ltd. (Second Respondent) Cyril Gardner Maloney (Third Respondent) FILE NUMBER(S) : CA 41191/2003 COUNSEL : R.S. McIlwaine SC/J. Loxton (Appellant) D.A. McLure (Respondent) SOLICITORS : Maurice May & Co. (Appellant) Shearman Lawyers (Respondents)