Night Club Employer Found Liable to Pay Damages To Man Assaulted By It's Barman
Mr Lamble, a 36 year old male at the time of the Court hearing, was assaulted during a brawl at Howl at the Moon nightclub on the Gold Coast on 8 December 2006. Mr Lamble was on the periphery of a fight at the Club that ended up outside the entrance to the Club. The brawl was between patrons who had been removed from the Club by security and workers of the Club.
Mr Lamble was standing on the outskirts of the brawl, looking on as he was concerned for friends involved in the brawl. A barman of the Club, who was sweeping up broken glass in the area of the brawl, without provocation, struck Mr Lamble across the head with a metal rubbish collector (a long handled dustpan) causing Mr Lamble to sustain multiple injuries, including a fracture to his skull, shattering his left check, eye socket and jaw, back injury, neck injury, laceration to his left cheek, scarring and a significant psychiatric injury. Video footage of the incident confirmed the assault on Mr Lamble. A witness also testified confirming the barman's unprovoked assault on the Plaintiff.
The barman was charged and prosecuted for the assault.
The Defendant argued that it should not be held liable for the barman's actions as they were outside the scope of his employment and the assault was a criminal act for which the barman himself could only be held liable. The Court did not agree and held that the barman's employment was significantly connected to the act and this close connection resulted in the employer being held vicariously liable for the barman's negligent act of assaulting the Plaintiff.
The Court held that the Club was not directly negligent for the assault because it accepted the employer had given a general instruction to workers not to become involved in security situations at the Club. As such, Mr Lamble's case succeeded solely on the basis of the employer's vicarious liability for the actions of its worker, the barman.
The Defendant claimed that Mr Lamble's claim should be reduced under the provisions of the Civil Liability Act 2003 which requires an automatic reduction should alcohol intake by the Plaintiff have contributed to the injury occurring (the Plaintiff had drunk around 8 to 9 beers over a number of hours prior to the event occurring). The Court accepted the argument of the Plaintiff in this regard, finding that the amount of alcohol consumed by Mr Lamble over the hours he had been drinking was unlikely to have been sufficient to cause him to be so inebriated that it contributed to the incident occurring.
The video of the brawl from cameras in the nearby mall assisted the Plaintiff's case in this respect as it showed that the Plaintiff did not appear drunk at the time of the attack. The Plaintiff was awarded damages at $1.399 million for his injuries. The damages awarded by His Honour Douglas J were broken down as follows:
|Head of Damage||Amount|
|Past economic loss||$326,394.00|
|Interest on past economic loss||$37,117.00|
|Past loss of superannuation||$29,375.00|
|Future economic loss||$490,000.00|
|Future loss of superannuation||$44,100.00|
|Past gratuitous assistance||$131,750.00|
|Interest on past assistance damages||$17,075.00|
|Past special damages (inclusive of refunds)||$52,396.29|
|Interest on special damages (not including refunds)||$5,102.33|
Some other interesting points in the decision handed down
- The Plaintiff had been involved in a serious head on collision motor vehicle accident in 2010 where he was quite seriously injured. In this accident, the Plaintiff suffered injuries to his spleen, liver, back, a fractured pelvis and hip, and lacerations to his right arm, forehead and right eye socket. However, the Court accepted that the Plaintiff's main problems interfering with his capacity to work and his everyday functioning stemmed from the injuries he sustained in the assault.
- The Defendant pointed out that there were other stressors over the period since the assault that would have significantly contributed to the Plaintiff's serious psychiatric condition. Namely, the Plaintiff's wife had a cyst on her brain and was suffering from cancer, as well as the car accident the Plaintiff was involved in in 2010. However, the Court accepted that the Plaintiff's serious psychiatric injury was as a result of the assault.
- Video surveillance was produced by the Defendant showing the Plaintiff undertaking numerous tasks about the home (ie. spraying a wasp's nest and running away from it without showing restriction, and bending repeatedly to load the car with items (spades etc), which he said he was taking to his wife to use at their rental property). The Court however did not find the video evidence sufficient for it not to accept the restrictions the Plaintiff reported suffering as a consequence of the assault injuries, or the help he gave evidence that he continued to require and was receiving from his wife since the assault.
Read the case in full: Lamble v Howl at the Moon Broadbeach Pty Ltd.
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