Basic HTML Version
24 • Touchline • Issue 17
of the employer’s interests or in the
intended performance of the contract of
employment as cited in New South Wales
v Lepore (2003) 212 CLR 511.
Mr Cerantonio’s father gave evidence
that he had repeatedly told his son not
to get involved in fights or security
incidents. Mr Zulli gave evidence that he
had also provided similar warnings to Mr
Cerantonio.
The Court accepted that Mr Cerantonio
became involved in the incident in an
attempt to rescue his uncle from the
struggle which had arisen as a result
of Mr Zulli’s attempt to escort an unruly
patron out of the premises.
The Court accepted that Mr Cerantonio
was acting to advance the interests of
the defendant by trying to protect one of
its staff members. The Court found that
he was not acting in his own interests but
in those of his employer. The trial judge
accepted that Mr Cerantonio should not
have used a weapon but noted that he
did not persist once Mr Lamble fell to the
ground and therefore did not view this
as evidence that he was acting in private
spite or revenge.
In addition to this, the Court noted that
despite Mr Zulli’s evidence that staff
would usually leave this sort of issue
to security, the fact that the ejection
of unruly patrons was an activity within
the course of his employment had been
highlighted by Mr Zulli’s behaviour in
taking the other patron downstairs. The
Court found that Mr Cerantonio was
entitled to follow the example set by Mr
Zulli that night.
The Court did not consider it was
relevant that Mr Cerantonio was also
acting to protect a family member as his
behaviour was sufficiently connected to
his employment to make the defendant
vicariously liable for Mr Lamble’s injuries.
Direct Liability
Mr Lamble also argued that the defendant
breached its duty as an occupier by
failing to instruct Mr Cerantonio not to
involve himself in an altercation between
patrons of the night club and staff.
The Court accepted that there was
probably some oral instruction to Mr
Cerantonio not to behave in the manner
in which he did and leave security issues
to the security staff. It did not accept Mr
Lamble’s assertion that by escorting the
patrons out themselves, the managers’
actions should be treated as a general
revocation of the earlier advice to bar
staff to refer all security matters to
security staff.
The Court ultimately accepted that
Mr Cerantonio would probably have
acted in the same manner whether or
not there had been a failure to give
instructions as pleaded by the plaintiff
and therefore considered it would be
difficult to establish that any failure to
give instructions was causative of the
injury.
Contributory negligence
The defendant submitted that, in the
event the Court found it was liable, then
a discount of Mr Lamble’s damages by
30% for contributory negligence was
appropriate.
Having found no independent breach of
duty owed by the defendant, the Court
did not need to make a finding on the
issue.
Curiously, the trial judge observed that, by
involving himself in a fight as he did, Mr
Lamble was contributorily negligent to a
minor extent. His Honour stated that, had
it been necessary to apportion liability
for contributory negligence he would
have reduced Mr Lamble’s damages by
15%.
Summary
The critical lessons for venue operators,
particularly licensed venues, is to
carefully consider how the actions of
their managers influence those of their
staff and assess the adequacy of their
security arrangements for dealing with
unlicensed patrons.
It is one thing to instruct staff in how
they are to act in the performance of
their duties but, if management is not
seen to be following these instructions
themselves, it will be difficult for venue
operators to avoid liability for the actions
of employees who have taken the lead
from management regardless of whether
there has been specific instruction to the
contrary.
Secondly, if an operator intends to leave
ejection of unruly patrons to security
staff it must ensure that it has taken
reasonable steps to ensure that there
are sufficient security personnel having
regard to the number of patrons likely
be present at the venue. For example,
it would be reasonable to expect an
increased security presence at licensed
premises in the lead up to Christmas to
reflect the likelihood that more people
will be attending licensed premises, with
some of their number adversely affected
by alcohol and potentially posing a risk
to themselves and other patrons. In
the present case, the brawl in which Mr
Lamble suffered his injuries may have
been averted if there had been sufficient
security personnel had been available to
escort the bottle-wielding patron from
the premises. The physical presence of
security staff conducting the ejection
may have been a sufficient deterrent to
avert the bottle throwing incident which
led to the brawl in which Mr Lambie was
injured.
DIRECT LIABILITY
SUMMARY
CONTRIBUTORY
NEGLIGENCE