Thursday, 17 April 2014 12:04pm
A Queensland employer, whose barman hit a customer in the head during an unruly work Christmas party, has lost its appeal against a $1.4 million damages ruling, after the Court of Appeal found the barman acted in the employer's interests.
The Court found the Howl at the Moon Broadbeach Pty Ltd barman didn't embark on a frolic of his own.
In December 2006, Andrew Jon Lamble - a foreman at a roof truss company - attended the Howl at the Moon nightclub on the Gold Coast with about 20 colleagues for their work Christmas party.
A club manager subsequently escorted a "troublesome" member of the party off the premises, before becoming involved in a struggle with Lamble and two of his friends.
Contrary to the manager's expectations, no security guard was present when he walked outside, but the barman saw the scuffle and tried to break it up. When the fight restarted, the barman hit Lamble on the head with a dustpan, causing severe injuries.
Lamble sued Howl at the Moon for damages, arguing it breached its duty of care to him and was vicariously liable for the barman's actions.
The employer denied liability, arguing the barman acted outside of his employment in failing to avoid confrontation or alert security personnel to aggressive customer behaviour.
But in September 2013, Supreme Court Justice James Douglas found in Lamble's favour, and ordered the employer to pay him $1,399,000 in damages.
Justice Douglas said "the mere fact that [the barman's] conditions of employment may have provided that he should defer to the security staff does not mean that what he was doing was not in the course of his employment, especially when no security staff were available".
"There was no reason for him to do what he did except in a misguided attempt to rescue [the manager] in the emergency that had arisen," he said.
"However misguidedly, he was seeking to advance the [employer's] interests in protecting one of its managers."
The employer appealed, arguing the barman's duties didn't extend to tasks outside its premises, but Justices Catherine Holmes, John Muir and Ann Lyons agreed with Justice Douglas's findings.
Justice Muir said that while the barman's duties "could normally be expected to be confined to the nightclub premises, it is improbable that it would not have been within the scope of his duties to clean up broken glass outside the front door or to clean the exterior of the door and its surrounds".
"More significantly, there was a direct connection between the attack on [the manager] and the operation of the nightclub," he said.
Justice Muir also found that the instruction to "leave security issues to the security staff" didn't cover "all possible contingencies and, in particular, those in which security staff were not present or were otherwise unable to act in time to respond to an emergency".
"[The barman] was faced with a choice; act immediately and go to the aid of the endangered [manager] or seek help from security staff," he said.
"It was in the interests of the [employer] that [the manager] be aided and protected and that the fracas in which he was involved be stopped."
Howl at the Moon Broadbeach Pty Ltd v Lamble [2014] QCA 74 (11 April 2014)