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Damages Claims - Limits on liability for injury |
A hotel patron assaulted by a bouncer may be entitled to common law damages against the bouncer, but in what circumstances would a claim against the hotel fail? This is an important issue whenever someone who inflicted an injury cannot meet a substantial damages claim and the victim wants to bring a claim against a third party with deeper pockets. |
Recent cases and some legal changes have made it clear that a damages claim against a third party liable for the intentional damage of another falls outside the Civil Liability Act, but a claim against the third party in negligence will fall within it. This is consistent with the overall objectives of the Act. |
These developments highlight the importance your solicitor will place on distinguishing the different bases on which an intentional injury claim might be brought against a third party, and focus attention on the ill-defined boundaries of the law of vicarious liability for intentional injury. |
There will be cases where the result reached is arbitrary and arguably unjust. The employer of a bouncer, with an otherwise impeccable record, who uses excessive force in ejecting a rowdy patron would be liable for the assault and exposed to common law damages. |
However, if a bouncer with a known record of unprovoked assaults on patrons commits a violent and groundless assault on a well-behaved patron, in circumstances found to be outside the course of employment, the employer's liability for negligence in employing the bouncer would be limited under the Civil Liability Act. |
