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Touchline • Issue 17 • 23
At the same time this occurred, Mr Lamble went to leave with
another colleague who had been asked to leave the nightclub
because he was intoxicated. Mr Lamble’s evidence was that
he was going to catch a taxi home with his colleague and he
remembered walking down the stairs of the nightclub, trying to
assist in defusing the situation and then waking up in hospital.
The evidence before the Court as to the cause of the claimant’s
injury was that of a barman, Mr Anthony Cerantonio. Mr
Cerantonio’s evidence was that he was asked by one of the
nightclub employees to go and clean up some smashed glass
at the front of the nightclub. When he went out the front, the
fight was still in motion between the patrons and the other staff
members and security. In particular, Mr Cerantonio observed that
his uncle, Mr Zulli, was on the floor scuffling with two or three
men. Mr Cerantonio said that he went outside to try and break up
the fight. He grabbed the dustpan (which was a metal dustpan
with a long handle) and swung it. He said he did not think but
just reacted. The dustpan hit Mr Lamble.
Mr Lamble alleged that the defendant was vicariously liable or
directly liable for the assault by Mr Cerantonio.
Vicarious Liability
The Defendant led evidence that members of the management
(which included Mr Cerantonio’s father and Mr Zulli) had issued
numerous warning to staff, including Mr Cerantonio, to leave
security to the security staff and not to involve themselves in
altercations between patrons. This direction was also included
in a house policy document all staff were required to sign
(although there was some dispute as to whether Mr Cerantonio
had signed the policy before the incident).
In determining whether an employer is vicariously liable for the
acts of its employees, the Court considered the test to be applied
was whether the act is performed in either the intended pursuit
VICARIOUS LIABILITY