Kelekolio v Hotel Kitano Tusitala [2004] WSSC 14 (16 November 2004)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

MIKA KELEKOLIO
of Wellington, New Zealand, Consultant.
Plaintiff

AND

HOTEL KITANO TUSITALA
a local entity carrying on hotel business in Apia.
Defendant

Counsel: TRS Toailoa for plaintiff
PA Fepuleai for defendant

Hearing: 16 August, 2, 3, 4, 9 November 2004
Judgment: 9 November 2004
Reasons: 16 November 2004

JUDGMENT OF SAPOLU CJ

On 9 November 2004 at the conclusion of the evidence in this case and after taking a short adjournment to consider the written submissions by counsel for the plaintiff, I gave judgment dismissing the claim by the plaintiff in the tort of assault and battery. I then indicated to both counsel that my written judgment together with its reasons will be made available to them in due course. This is that judgment together with its reasons.

Evidence

The plaintiff, Mika Kelekolio, is a Samoan national who now lives in New Zealand. The defendant is the Hotel Kitano Tusitala (the hotel) which is one of the main hotels in Apia. In December 2003, the plaintiff came to Samoa for some work in connection with his consultancy business in New Zealand and checked into the hotel on 18 December. On the evening of 2 January 2004, the plaintiff, his girlfriend, a male acquaintance and his girlfriend had drinks, wine and beer, at the pool side bar of the hotel. I will hereafter refer to the plaintiff’s girlfriend as J. Later on in the evening, J left the plaintiff’s table and went to the bar where a girl and a man were drinking. The girl was very drunk and was crying because she did not want to be taken home by the man she was drinking with and who had come with her to the hotel. When the man went to the gents, the girl asked J for help. J then went to the plaintiff who was still drinking with his male acquaintance and his girlfriend, got from the plaintiff the key to his hotel room, and took the girl to the plaintiff’s room where the girl had a shower and then fell asleep on the plaintiff’s bed as she was very drunk.

Meanwhile, the man who came with the girl was making a nuisance of himself at the hotel lobby telling Barbara Tweedie, the hotel employee who was on duty behind the reception desk, to call on the phone the room J was in to bring the girl to the reception desk as he was waiting for her. That was after 9pm. According to Barbara’s testimony, she knows J as a friend of the plaintiff. So she called the plaintiff’s room and J answered the phone. Barbara testified that she then told J to bring the girl to the lobby as the man she had come with was asking for her. J’s reply was to tell the man that the girl was asleep as she was too drunk. This made the man very upset and he threatened to go to the room where J and the girl were. Barbara therefore called the security officers who were on duty at the hotel that night and she instructed them to go and knock on the plaintiff’s room and tell J to bring the girl to the reception desk as the man she came with was still waiting for her. The security officers, Faalavai Malaga and Mathew Scanlan, who had just arrived at the hotel that night, then went to the plaintiff’s room. They were followed by the witness Tavita Ieti who was the hotel porter on duty at the time.

The evidence as to what occurred at the plaintiff’s room is quite conflicting. I do not propose to go into it in detail as its limited value is to provide the background to the assault which the plaintiff has alleged to have been committed by the security officers upon him later that night. According to the evidence of J, when the security officers came to the room the first time and knocked on the door and asked her to bring out the girl, she told them the girl was asleep as she was too drunk. The security officers then left. A little later, the security officers came to the room again and asked for the girl. She told them the girl was too drunk and could not walk. After calling the reception desk that the security officers were disturbing her and the girl and the guest in the next room, J said she told the security officers to go away. She then called the pool side bar to tell the plaintiff to come to his room. The security officers later came back to the plaintiff’s room for the girl. At that time, according to J’s evidence, the plaintiff, herself and the girl were in the room. The evidence as to what happened then is quite conflicting but it is unnecessary to resolve the conflicts. The plaintiff testified that as he was going to have a shower, there was a knock on the door to his room. He unlatched the door from inside and the security officers pushed their way into his room and asked for the girl. The hotel porter was then standing outside of the door. At that time there was no girl in the room. J further testified that the security officers came back to the room two more times. So in total, the security officers came to the room five times.

The two security officers, Faalavai Malaga and Mathew Scanlan, were the last two witnesses whose names appear in the list of witnesses for the defendant hotel which was produced to the Court. Faalavai testified that he is employed as a security officer by South Pacific Security which is a security firm owned by Tony Heem a prominent businessman in Apia. SPS is responsible for providing security services to the defendant hotel. Faalavai’s wages as a security officer are paid by SPS. It is clear from the evidence that on the night in question Faalavai was on duty at the hotel as a security officer employed by SPS. The witness Mathew testified that he is also employed as a security officer by SPS which pays his wages. SPS provides security services not only for the defendant hotel but for various other clients. On the night in question, Mathew was on duty as security patrolman. What that means is that Mathew would go around the various security posts of SPS to find out whether any assistance was required and, if so, to provide what assistance he could provide. On the night in question, Mathew arrived at the SPS security post at the hotel and found no security officer there. He then went to the reception area and he met Faalavai who told him that he (Faalavai) was going to the plaintiff’s room for a girl that a man at the reception area was asking for. Both Faalavai and Mathew then walked to the plaintiff’s room.

The respective testimonies given by Faalavai and Mathew as to what occurred at the plaintiff’s room are generally consistent with one another. Their respective testimonies were that when they came to the plaintiff’s room, followed by the hotel porter Tavita Ieti, they knocked on the door. J came out and asked who assaulted her father. The hotel porter testified that he replied to J that no one had assaulted her father. J then walked down to the lobby and the two security officers and the hotel porter followed her. At the lobby, J, according to the evidence of Faalavai, argued with the man who had been asking for the girl. J then gave the key of the plaintiff’s room to Faalavai to go and check the room. The two security officers and the hotel porter then went back to the plaintiff’s room. The security officers said they knocked on the door two or three times and when no one answered, Faalavai opened the door with the key but the door was latched from inside. Shortly afterwards, the plaintiff unlatched the door and asked as to why the security officers had come to his room. The security officers said that the plaintiff then swore at them as he was angry. The plaintiff also said he was going to take their photos and publish them in the newspaper. The security officers and the hotel porter then returned to the lobby.

The evidence given by the plaintiff and the evidence given by the security officers as to what followed at the lobby are also quite conflicting. According to the evidence of the plaintiff, when the security officers left his room, he picked up his camera and went down to the reception area where he found them. He took two photos of the security officers and was apparently in the process of taking another photo when one of the security officers approached him. This security officer as shown from the evidence was Mathew. The plaintiff testified that the security officer tried to snatch the camera from him, squeezed his neck, held his left wrist with two hands and tried to push him towards the hotel’s carpark. He then tried with his right hand to hang on to one of the large posts at the hotel lobby but the security officer tried to dislodge his hand from the post. The security then reached for the camera and pulled it to him. The plaintiff also testified that the security officer then hit him on the chest. When he tried to take another photo of the security officer, the camera was damaged as its knob was broken. An Asian man then arrived and said to the security officer to leave the plaintiff to him. This Asian man as other parts of the evidence show was the general manager of the hotel. The plaintiff also said he was not drunk as he had only four or five glasses of wine that night.

The evidence of the security officers is that they were standing at the reception desk when the plaintiff took their photos from in front of the notice board at the walkway to the rooms of the hotel guests. They did not see the plaintiff at the time their photos were taken as their backs were facing where the plaintiff took their photos from. All they knew were two flashes as if they came from a camera. When they looked behind they saw the plaintiff holding up his camera. According to the evidence of Mathew, the hotel employee who was on duty behind the reception desk then told them (the security officers) to stop the plaintiff. This hotel employee was Barbara Tweedie. Mathew then approached the plaintiff whom he said was under the influence of alcohol and put his hands around the plaintiff from behind. Mathew said the plaintiff was still at that time infront of the notice board at the walkway to the rooms of the hotel guests. He wanted to take the plaintiff back to his room. So he was pushing the plaintiff from behind to take him back to his room. When they came to the pool side bar which is alongside the walkway, the plaintiff pulled away and embraced one of the posts at the bar. At that time, the general manager of the hotel arrived and said to leave the plaintiff to him. The security officers denied the plaintiff’s evidence that Mathew tried to pull the plaintiff to the hotel’s carpark or snatched his camera or assaulted him.

I have decided not to make a finding of fact as to whether or not the security officers assaulted the plaintiff as alleged by the plaintiff. In other words, I have decided not to make a finding of fact between the conflicting accounts given by the plaintiff and by the security officers as to what actually happened, that is, whether any assault was actually committed. I will now explain why.

Why the Court makes no finding whether an assault was committed or not

The action for damages by the plaintiff was framed in the tort of assault and battery. It proceeded on the basis that the security officers were those of the hotel and therefore the hotel should be vicariously liable for any assault committed by its employees. It only became clear when Faalavai, the second to last witness called by the hotel, took the witness stand and was asked to give his full name, address and occupation that it became clear that Faalavai and Mathew, the last witness for the hotel, were actually employees of South Pacific Security and not of the hotel. At that time, the case for the plaintiff had closed. The plaintiff had also returned to New Zealand after his evidence was completed on 16 August.

It is unfortunate that SPS was not cited as a party in this case either as one of the defendants or as a third party. But having said that, it appears from the pleadings of the plaintiff that neither the plaintiff nor his counsel was aware that the security officers were actually employees of SPS and not of the defendant hotel. So they proceeded with the claim on the assumption that the security officers were employees of the hotel. There is also nothing in the pleadings by the defendant hotel to show that the security officers were employees of SPS. Thus the clear inference is that the plaintiff could not have known whether SPS should have been cited as a defendant in these proceedings.

In view of the decision the Court has reached to dismiss the plaintiff’s claim against the hotel, the plaintiff may decide to claim against SPS for the alleged assault by its security officers on him. If, therefore, I make a finding of assault against the security officers in the present proceedings to which SPS is not a party, that may unfairly jeopardise any defence that SPS may wish to raise to any claim by the plaintiff, if the plaintiff decides to claim against SPS. Likewise, if I make a finding that the security officers did not commit any assault as alleged by the plaintiff, that may prejudice any future claim the plaintiff may bring against SPS if he wishes to carry on with this matter. As I have said, it is unfortunate that SPS was not cited as a party to the present proceedings. However, I have decided that whether the account given by the plaintiff or the account given by the security officers as to what happened is accepted, I would still reach the same decision and dismiss the claim against the hotel.

Why the hotel is not vicariously liable in tort

To understand why I have decided that the hotel is not vicariously liable in the tort of assault and battery, I need to refer to the relevant evidence. The security officer Faalavai testified that he is employed as a security officer by SPS which pays his wages. He also testified that SPS provides security services to the hotel and on the night in question he was one of the SPS security officers who was on duty at the hotel. He also testified that he had on other occasions been on duty at SPS security posts at the premises of other SPS clients. The security officer Mathew testified that he is also employed as a security officer by SPS which pays his wages. He also testified that on the night in question he was on duty as security patrolman for SPS going around the various security posts manned by SPS security officers to find out whether any assistance was required. He also testified that it is his boss Tony Heem who gives the security officers direction on how to deal with a situation that may arise.

As I had raised with both counsel, when the witness Faalavai testified that he was employed as a security officer by SPS, the issue of whether the hotel was the right defendant to be sued, this issue became prominent when Mathew was called to give evidence. In consequence, counsel for the plaintiff at the end of Mathew’s evidence sought leave to call further evidence in relation to the issue raised by the Court. I granted leave to counsel for the plaintiff to call a witness from SPS as requested. I also gave leave to counsel for the defendant hotel to call a witness from the hotel. The case was then further adjourned to 9 November for that purpose.

Mr Heem the owner of SPS was called by counsel for the plaintiff. In his evidence-in-chief, Mr Heem said that under the arrangements between SPS and the hotel, SPS provides security services for the hotel guests, protection for hotel assets and protection for hotel staff. For those services, SPS charges a rate of $3.50 an hour for each security officer on duty at the hotel. Mr Heem also said that the security officers take their instructions from the person who is on duty as in-charge at the reception desk of the hotel. He also confirmed that the witnesses Faalavai and Mathew are employed as security officers by SPS which pays their wages. In reply to questions from the Court, Mr Heem also said that SPS is a registered company and it has the right to terminate the services of a security officer.

Under cross-examination by counsel for the defendant hotel, Mr Heem said that he has been a security officer doing security work for a long time, starting in New Zealand in 1964. He said that with SPS, he provides physical training every Monday morning for the security officers on how to deal with a security situation that may arise. This includes how to apply an arm lock and how to calm down a disorderly person. Mr Heem also testified that it is for the security officer to decide, based on the training he provides, on what method to be applied in dealing with a disorderly person in a peaceful manner in a particular situation. He also said that during their Monday morning physical trainings, they would discuss any problems that may have occurred during the work of the security officers. When the circumstances of what happened, as related by the security officers in their evidence, were put to Mr Heem, he said that what he would have done in such circumstances was to put his arms around the person involved. This is consistent with what the witness Mathew said that he did to the plaintiff. Mr Heem also said that SPS security officers on duty at the hotel take their instructions from the hotel employee who is in charge at the reception desk at the time.

Counsel for the hotel called Tupu Betham, a hotel employee for fourteen years. She testified that SPS provides security officers for the hotel guests, staff and assets. The hotel pays SPS for those services and SPS pays its security officers. In her evidence given in chief and under cross-examination, this witness was rather emphatic that the hotel staff do not instruct the security officers on how to do their job or as to the manner in which they are to do their job as security officers. She said under cross-examination that if the hotel needs help, its staff would tell the security officers they need help. It would then be for the security officers to do their job. The hotel staff do not tell the security officers how to do their job.

In the leading English case of Mersey Docks and Harbour Board v Coggins & Griffiths (Liverpool) Ltd and McFarlane [1946] 2 A11 ER 345, the appellant Board was the owner of mobile cranes each operated by a skilled workman employed by the Board which paid their wages and had the sole power of dismissal. One of these cranes was lent by the appellant Board together with its operator to the respondent, a firm of stevedores, for the purpose of loading a ship. While the crane was being used by the Board’s crane operator to lift a piece of cargo, the cargo struck a third party causing him severe injuries. The question which arose for decision was whether it was the appellant Board as general employer of the crane-driver or the respondent firm of stevedores as hirer of the crane and its operator that should be liable to the injured third party. It was found as a fact that even though the respondent firm of stevedores had the immediate direction and control of the operations to be executed by the crane driver with his crane, for example to pick up a piece of cargo, the respondent had no authority to direct the crane operator on how he should work the crane. The manipulation of the controls of the crane was a matter for the crane operator himself. The House of Lords therefore held that the appellant Board, the general employer of the crane driver, was liable for the negligence of the crane driver which caused the injuries to the third party.

At p347, Viscount Simon said:

“In the present case the accident happened because of the negligent way in which the crane driver worked his crane, and since [the respondent] had no control over how he worked it, as distinguished from telling him what he was to do with the crane, it seems to me to follow that [the crane driver’s] general employers must be liable for his negligence and not the hirers of the apparatus.”

At p351, Lord Porter stated his opinion by saying:

“Many factors have a bearing on the result. Who is the paymaster, who can dismiss, how long the alternative service lasts, what machinery is employed – all these questions have to be kept in mind. The expressions used in any individual case must always be considered in regard to the subject matter under discussion, but among the many tests suggested, I think that the most satisfactory by which to ascertain who is the employer at any particular time is to ask who is entitled to tell the employee the way in which he is to do the work upon which he is engaged. If someone other than his general employer is authorised to do this, he will, as a rule, be the person liable for the employee’s negligence. But it is not enough that the task to be performed should be under his control, he must also control the method of performing it. It is true that in most cases no orders as to how a job should be done are given or required. The man is left to do his work in his own way, but the ultimate question is not what specific orders, or whether any specific orders, were given, but who is entitled to give the orders as to how the work should be done.”

At p354, Lord Uthwatt in delivering his judgment said:

“To establish the degree of control requisite to fasten responsibility upon him [the hirer], the hirer must in some reasonable sense be shown to have authority to control the manner in which a particular operation (assumed for this purpose to be in itself a proper operation) is carried out that determines its lawful or wrongful character.”

In the important Australian case of Kondis v State Transport Authority [1984] HCA 61; (1984) 55 ALR 225, the appellant was employed with a gang by the respondent in dismantling a metal structure. They were assisted by a crane hired from a third party. The crane operator was also an employee of the third party. The appellant was injured from a rod that was dropped from the crane while being manipulated by the crane operator. At the High Court of Australia, Mason, Brennan and Deane JJ found that the crane operator was not at the time of the appellant’s injury a servant pro hac vice of the respondent since the entire supervision and control of the crane was in the hands of the third party’s crane operator. At pp238-239, Brennan J when dealing with the question of vicarious liability said:

“A defendant is not vicariously liable for a tortious act done by a workman who is not his servant if the defendant has no authority to control the doing of the act and does not directly authorize it. It makes no difference that the tortious act is done in performing work for the defendant’s benefit. Prima facie, the workman’s employer is vicariously liable for the tortious act, but if he is able to transfer and transfers authority to control the doing of the act to the defendant, the defendant is liable. It has been said that the nature and extent of the control transferred to the defendant or retained by the employer determines whether there is a shift of liability from the employer to the defendant: see McDonald v Commonwealth [1945] NSWStRp 36; (1945) 46 SR (NSW) 129 at 132; Karuppan Bhoomidas v Port of Singapore Authority [1978] 1 WLR 189. Where the defendant’s vicarious liability depends upon his authority to control the doing of the tortious act that must be so, for he could have no such authority if it has not been transferred to him by the employer. But it does not follow that a defendant, lacking the relevant authority, can never be vicariously liable; liability can arise from a direct authorization of the tortious act. If I prevail upon the driver of a taxi to drive dangerously, I cannot escape liability for the consequences by pointing to the general employment of the driver by the owner of the taxi. In some circumstances, a defendant may also be vicariously liable for a negligent act or omission done or made by the driver of a vehicle who is not his servant and who has not been directly authorized to do the act or make the omission. A defendant is liable if he is the owner or bailee of the vehicle, if he appoints the driver to drive it on his behalf and if he is in the vehicle or is otherwise able to assert control over the driver: see Soblusky v Egan [1960] HCA 9; (1960) 103 CLR 215 at 229 – 231.

None of these foundations of vicarious liability appear in the present case. C’s employer was the owner of the crane which was hired to the respondent with C to drive and manage it. Where a crane is let out on hire and the owner’s servant is sent to drive and manage it with instructions to do the work directed by the hirer, the hirer’s authority to direct what work is to be done does not ordinarily extend to an authority to control the manner of doing it. The respondent had no authority to control C in his extension of the jib of the crane and neither the respondent nor its servants directly authorized C to go about the extension of the jib in a particular way. Once C was directed to the job in hand, it was left to him to decide how the crane should be prepared to do that job. C alone decided to extend the jib of the crane and he alone determined and controlled the extension procedure.”

In the New Zealand case of Steel Structures Ltd v Rangitikei Country [1974] 2 NZLR 306, the respondent county was in the process of building a bridge over a stream and used two cranes for the construction of the bridge. One of these cranes was owned by the appellant company and was hired to the county together with the appellant employee who operated the crane. While this crane was being used to install the beams of the bridge it crushed an employee of a third party who was transporting the beams to the construction site. The injured employee brought an action for damages against the respondent county as hirer of the crane and the appellant company as owner of the crane and employer of the crane operator. In delivering the judgment of the Court of Appeal, Mc Carthy P stated at pp310 – 311:

“It is well established that there are circumstances in which the permanent employer of a tortfeasor can say that his employee was to such an extent under the control and direction of someome in authority in a particular operation that a temporary transfer of the employee pro hac vice should be held to have occurred. Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd [1946] UKHL 1; [1947] AC 1; [1946] 2 A11 ER 345, is the classic authority in this area. There, it was said that the burden of establishing such a transfer is a heavy one, and can only be discharged in quite exceptional circumstances. In Denham v Midlands Employess Mutual Assurance Ltd [1955] 2 QB 437; [1955] 2 A11 ER 561, Denning LJ added that such a transfer rarely takes place when a man is lent with a machine, such as a crane or lorry, or where a skilled man is lent so as to exercise his skill for the temporary employer. In such cases the parties do not contemplate that the temporary employer shall tell the man how to manipulate his machine or to exercise his skill. O’Reilly v Imperial Chemical Industries Ltd [1955] 1 WLR 1155; [1955] 3 A11 ER 382 is an instance of a driver being on permanent loan with his lorry, but even then the Court held that the plaintiffs had not discharged the heavy onus of establishing that the defendants had the right to direct how the particular work was to be done. In New “Zealand these principles were applied by this Court in Ferguson Construction Co Ltd v Hargreaves [1972] NZCA 22; [1973] 1 NZLR 634. There, however, the situation was a little different, for the plaintiff was seeking to recover not only from his permanent employer, the owner of “the crane, but also from the hirer of the crane. The difference is adverted to by Salmond on Torts (15^th ed) 619. Nevertheless, all the cases show that the test in all circumstances “is one of the right to control not merely what is done but how it is to be done. Each case must necessarily be decided on its own facts, and such observations as those of Lord Denning in Denham’s case are better not treated as propositions of law but instead as reflections on “the facts of a particular case.” (emphasis added)

The passage I have just cited was also cited with approval by the New Zealand Court of Appeal in the later case of Airwork (NZ) Ltd v Vertical Flight Management Ltd [1999] 1 NZLR 641 at 653 which was also concerned with the question of vicarious liability for the tortious act of a transferred employee. In Denham v Midland Employers Mutual Assurance Ltd [1955] 2 QB 437 referred to in Steel Structures case, a company which owned some land employed a firm of engineering contractors skilled in boring holes to make test borings on its land. The contractors provided skilled drillers to make the test borings. The company provided one of its unskilled labourers to help with the work. The unskilled labourer continued to be paid by the company, who alone had the power to dismiss him. But he worked alongside the contractor's skilled drillers and under the specific direction of the contractors’ foreman. The labourer was killed in the course of the boring operations. The contractors agreed that in the circumstances they were liable for the death of the labourer. The case seems to have been contested on the issue of insurance liability. However Denning LJ had this to say about liability concerning transferred employees at pp443 – 444.

“Much of the difficulty which surrounds this subject arises out of the nineteenth century conception that a servant of a general employer may be transferred to a temporary employer so as to become for the time being the servant of the temporary employer. That conception is a very useful device to put liability on the shoulders of the one who should properly bear it, but it does not affect the contract of service itself. No contract of service can be transferred from one employer to another without the servant’s consent’ and this consent is not to be raised by operation of law but only by the real consent in fact of the man, express or implied: see Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014. In none of the transfer cases which have been cited to us had the consent of the man been sought or obtained. The general employer has simply told him to go and do some particular work for the temporary employer and he has gone. The supposed transfer, when it takes place, is nothing more than a device – a very convenient and just device, mark you – to put liability on the temporary employer; and even this device has in recent years been very much restricted in its operation. It only applies when the servant is transferred so completely that the temporary employer has the right to dictate, not only what the servant is to do, but also how he is to do it: see Mersey Docks and Harbour Board v Coggins & Griffiths (Liverpool) Ltd [1946] UKHL 1; [1947] AC 1; [1946] 2 A11 ER 345. Such a transfer rarely takes place, if ever, when a man is lent with a machine, such as a crane or a lorry; nor when a skilled man is lent so as to exercise his skill for the temporary employer. In such case the parties do not contemplate that the temporary employer shall tell the man how to manipulate his machine or to exercise his skill. But a transfer does sometimes take place in the case when an unskilled man is lent to help with labouring work: see Gerrard v A. E. Southey & Co [1952] 2 QB 174; [1952] 1 A11 ER 597. The temporary employer can then no doubt tell the labourer how he is to do the job. The labourer becomes so much part of the organization to which he is seconded that the temporary employer is responsible for him and to him.”

It is the last five sentences of what Denning LJ said in the above passage that McCarthy P said in Steel Structures case are better not treated as propositions of law but as reflections on the facts of a particular case. Be that as it may, I think the significance of what Denning LJ said for the purpose of this case, is that it shows that the concept of transferred employee is not to be confined to mobile crane or machine cases. The concept is of wider application. I would also like to note here that transferred employees are referred to differently as “borrowed employees” in Law of Torts in New Zealand (1996) 2^nd ed at p1132 by Todd et al, and as “borrowed servants” in The Law of Torts (1992) 8^th ed at p375 by Fleming. Purely as a matter of personal preference, I will in the rest of this judgment refer to transferred employees as borrowed employees.

From the authorities I have already set out, the ultimate test to be applied in determining whether the general employer or the temporary employer is to be vicariously liable for the tortious act of a borrowed employee in a particular situation, is to ask who is entitled to tell the borrowed employee how to do the work he is employed to do. It is he who controls the manner or method of performing the task who will be liable for the tortious act committed by the borrowed employee in the performance of that task. This is a question of fact which depends on the circumstances of each case. Such factors as who is the paymaster, who has the power to dismiss, how long does the alternative service last or what machinery is employed would appear to be more suited to the question of who is the general employer of the borrowed employee.

The most typical case, as the authorities show, where the question of whether the general employer or the temporary employer is to be vicariously liable for the tort of a borrowed employee is where the general employer hires out a mobile plant and provides one of its own employees as the operator. However, the test which applies for determining liability is not restricted to such case. The test is stated in general terms. It is he who is entitled to tell a borrowed employee how to perform the work he is employed to do who will be liable for a tort committed by the borrowed employee. What was said by Denning LJ in Denham’s case about skilled workers and by Brennan J in Kondis case concerning the driver of a vehicle also show that the test has a wide application and is not to be restricted to cases of hired mobile plant and their operators.

In the present case, the security officers were at the material time employees of South Pacific Security which paid their wages and had the power to dismiss them. SPS through its owner who had been a security officer, himself, for many years provided the training for the security officers on how to do their work. In a sense the security officers were skilled employees. Even though the hotel may ask the security officers for help in a situation where their help is needed, or tell them what to do, the hotel does not tell the security officers how to do their work. It is for the security officers, themselves, to decide how to do their work based on their training provided by SPS. Thus it was for the security officers to decide how they were to deal with the plaintiff when they were asked by a hotel employee to stop the plaintiff who was taking photos of the security officers. If in the course of dealing with the plaintiff the security officers, or one of them, assaulted the plaintiff as alleged, the hotel should not be liable.

Contract

In his written submissions handed to the Court after the close of the evidence on 9 November, counsel for the plaintiff submits that it would have been an express or implied term of the contract between the plaintiff and the defendant hotel that the hotel would provide a safe and secure environment for the plaintiff whilst a guest of the hotel. The case cited in support of this submission is Stewart v Reavells Garage [1952] 2 QB 545 where the defendants who had sub-contracted the repair of a motor car was held liable for breach of contract in respect of an injury caused by the sub-contractor’s defective workmanship.

There are several difficulties with the plaintiff’s submissions. The plaintiff’s case has been framed in the tort of assault and battery and it proceeded throughout the trial on that basis. No cause of action was pleaded in contract. To accept the submission for the plaintiff will be tantamount to introducing a new cause of action for alleged breach of contract after the evidence had closed. That will not be proper, particularly as the hotel had no prior notice of such a cause of action and the evidence had closed. The other difficulty is that there is no evidence of any express contract between the plaintiff and the hotel for the latter to provide a safe and secure environment whilst the plaintiff was its guest. Certainly the plaintiff made no mention of such a contract during his evidence. There is also no evidence from the witnesses for the hotel that there was such a specific contract between the plaintiff and the hotel. As to whether there was an implied contract is also very difficult to see. Perhaps the usual contract between a hotel and a guest is that the hotel provides accommodation and the guest pays. The contract becomes effective without more. It is also difficult to see how a further term that the hotel has to provide a safe and secure environment can be implied. The contract that the plaintiff pays for the accommodation provided by the hotel is effective without such a term being implied. The case of Reavells Garage that was cited offers no assistance. I therefore reject the plaintiff’s submissions.

All in all then, the plaintiff’s claim in the tort of assault and battery is dismissed.

CHIEF JUSTICE

Solicitors:
Toailoa Law Office for plaintiff
Fepuleai & Schuster Law Firm for defendant