Written by Peter CarterSeptember 29, 2013
Policies & procedures and examples set by superiors were central to a $1.4 million injury claim by a 28-year-old fabrication foreman injured in a brawl that boiled over onto the footpath outside a Broadbeach nightclub.
An alcohol-induced fracas – complete with smashed glasses and thrown bottles – erupted as a Christmas party for a Currumbin building products supplier drew to a close at the Howl at the Moon nightclub on 8 December 2006. The fight ended after an hour when a long-handled metal dustpan felled Anthony Lamble, unconscious to the pavement.
Festivities at Howl had started at 7 pm with many guests already inebriated. The affray began three hours later when one of the group smashed a beer glass for a weapon and shouted threats. Shouldered outside into the upper arcade of the building, he “put up a real battle for about an hour” as the four security guards trying to subdue him, waited for police to arrive.
Both co-managers Mario Zulli and Luigi Ceratonio were involved in the upstairs eviction and controlling other patrons who rushed to their co-worker’s aid.
Zulli naturally enough asked the other partiers to leave. As he was escorting some to the bottom of the stairs, a bottle was thrown to ignite another brawl as Zulli head locked one and led him outside into the mall. Lamble – who had played no role in any of the disturbances – arrived on the scene apparently in an effort to break up the fight.
He was followed shortly by barman Matthew Ceratonio – son of Luigi and Zulli’s nephew – swinging his metal dustpan “as a weapon” at Lamble’s head. Lamble’s compensation lawsuit – he suffered serious head, neck and back injuries – alleged Howl to be liable in its own right and vicariously, for Matthew’s intentional assault.
To succeed in the second argument, the barman’s assault had to be demonstrated to be an act done “in furtherance of his duties”. Against this contention was a management instruction to hospitality staff to “leave security issues to security staff” and the absence in Matthew’s job description of any crowd control role.
Matthew Ceratonio and other bar staff were, however, so held the court, entitled to “follow the example” set by Luigi Ceratonio and Zulli – who had gotten involved in both brawls – and to act on that as tacit consent to also intervene.
In the court’s view, the assault was carried out as part of Matthew’s perceived role in “intended ostensible pursuit of the defendant’s interests in protecting Mr Zulli” and hence Howl was vicariously liable for the consequences of the assault.
The mere fact that Matthew’s conditions of employment and verbal warnings may have required he defer to security staff “does not mean that what he was doing was not in the course of his employment”. This was no less the case given that Matthew may have been partly motivated by familial duty to prevent injury to Zulli in the downstairs scuffle.
The example set by Zulli and Luigi Ceratonio becoming involved in the brawls – while sufficient to extend the bar staff scope of employment for the purposes of vicarious liability as reasoned above – was not (when considering primary liability) enough to overturn their general instruction to employees not to be involved in security issues and “should not be treated as a general revocation of the earlier notifications to bar staff”.
Thus the plaintiff succeeded in establishing the nightspot responsible on the basis of vicarious liability but could not establish a breach of duty by it as a primary wrongdoer.
Contributory negligence was not open to be argued because the action was brought in trespass (as opposed to negligence) and did not involve a “breach of duty” to which Civil Liability Act chapter 2 part 1 divisions 1-6 is restricted, pursuant to CLA s4. Interestingly, had the claim been one in negligence, His Honour was of the view that the act of “joining in the scuffle even if only to break it up” might warrant a contributory negligence apportionment of 15%.
Damages were assessed at $1.4 mil including $121k for general damages based on a psychological ISV of 50 and $490k for future loss of earning capacity. An appeal by Howl on the vicarious liability point was dismissed by the Court of Appeal in a judgment delivered on 11 April 2014.
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