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Vicarious liability

Nationwide News Pty Ltd v Naidu & Anor; [2007] NSWCA 377Beazley JA

240 The starting point of the application of the principle of vicarious liability is easy enough to state: an employer is vicariously liable for a tort or other actionable wrong committed by an employee in the course of employment: Deatons Proprietary Limited v Flew [1949] HCA 60; (1949) 79 CLR 370 at 379; State of New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511 at 535 [40]. However, there must be a sufficient connection with the duties and responsibilities of the employee as employee, for the employer to be vicariously liable. An employer will not be vicariously liable for a wrongful act if it is committed by the employee in what is often described as being 'upon a frolic of his own': Morris v C W Martin & Sons Ltd [1966] 1 QB 716 at 733. In State of New South Wales v Lepore Gleeson CJ said at 535 [40]:

'Not everything that an employee does at work, or during working hours, is sufficiently connected with the duties and responsibilities of the employee to be regarded as within the scope of the employment. And the fact that wrongdoing occurs away from the workplace, or outside normal working hours, is not conclusive against liability.'

241 As I discussed in Starks v RSM Security Pty Ltd & Ors [2004] NSWCA 351 at [13], an employer is liable for wrongful acts of an employee if the employer has authorised those acts. As Salmond stated in Salmond on Torts, 9th ed (1936), an employer may also be liable for an employee's unauthorised acts if those acts are:

... so connected with uthorised acts as they may be regarded as modes 'although improper modes' of doing them but the employer is not responsible if the unauthorised and wrongful act is not so connected with the authorised act as to be a mode of doing it, but is an independent act.

See also State of New South Wales v Lepore per Gleeson CJ, at 536 [42].

242 In State of New South Wales v Lepore, Gleeson CJ also observed at 540-541 [54]:

Where acts of physical iolence are concerned, the nature and seriousness of the criminal act may be relevant to a judgment as to whether it is to be regarded as a personal, independent act of the perpetrator, or whether it is within the scope of employment. A security guard at business premises who removes a person with unnecessary force may be acting in the course of employment. On the other hand, as Jordan CJ pointed out in Deatons Pty Ltd v Flew, extreme and unnecessary violence, perhaps combined with other factors, such as personal animosity towards the victim, might lead to a conclusion that what is involved is an act of purely personal vindictiveness. Sexual abuse, which is so obviously inconsistent with the responsibilities of anyone involved with the instruction and care of children, in former times would readily have been regarded as conduct of a personal and independent nature, unlikely ever to be treated as within the course of employment. Yet such conduct might take different forms. An opportunistic act of serious and random violence might be different, in terms of its connection with employment, from improper touching by a person whose duties involve intimate contact with another. In recent years, in most common law jurisdictions, courts have had to deal with a variety of situations involving sexual abuse by employees.

243 Provided that there is necessary connection with the employment, an employer may be liable even if there has been an express prohibition against the wrongful conduct: see Hollis v Vabu Pty Limited [2001] HCA 44; (2001) 207 CLR 21 per McHugh J at 60 [99], citing Limpus v London General Omnibus Co (1862) 1 H&C 526 [158 ER 993]; and Colonial Mutual Insurance Society Limited v Producers and Citizens Co-Operative Assurance Company of Australia Limited [1931] HCA 53; (1931) 46 CLR 41, where Gavan Duffy CJ and Starke J said at 47 'if an unlawful act done by an agent be within the scope of his authority, it is immaterial that the principal directed the agent not to do it'. Dixon J said, at 50:

The wrong committed arose from the mistaken or erroneous manner in which the actual authority committed to him was exercised when acting as a true agent representing his principal in dealing with third persons.





Fuz v Carter and Ors [2006] NSWSC 771. Studdert J.

40 In the much cited decision in Deatons Pty Limited v Flew [1949] HCA 60; (1949) 79 CLR 370, Williams J said this as to principle (at pp 384-385):

"We were referred to a large number of cases but we cannot do better, I think, than rely, like Jordan C.J., on the statement of the law in the passage from Salmond on Torts, 9th ed. (1936), p 495 cited with approval in the judgment of the Privy Council in Canadian Pacific Railway Co v Lockhart (1942) AC 591, at p 599

 'It is clear that the master is responsible for acts actually authorized by him: for liability would exist in this case, even if the relation between the parties was merely one of agency, and not one of service at all. But a master, as opposed to the employer of an independent contractor, is liable even for acts which he has not authorized, provided they are so connected with acts that he has authorized that they may be regarded as modes— although improper modes—of doing them. In other words, a master is responsible not merely for what he authorizes his servant to do, but also for the way in which he does it. On the other hand, if the unauthorized and wrongful act of the servant is not so connected with the authorized act as to be a mode of doing it, but is an independent act, the master is not responsible: for in such a case the servant is not acting in the course of his employment, but has gone outside of it.' "

 41 In State of New South Wales v Lepore (2003) 212 CLR 511 Gleeson CJ said, on the issue of vicarious liability, at 536 [42]:

"It is clear that if the wrongful act of an employee has been authorised by the employer, the employer will be liable. The difficulty relates to unauthorised acts. The best known formulation of the test to be applied is that in Salmond, Law of Torts in the first edition in 1907 at p 83., and in later editions eg, Salmond on Torts, 9th ed (1936), pp 94-95: an employer is liable even for unauthorised acts if they are so connected with authorised acts that they may be regarded as modes — although improper modes — of doing them, but the employer is not responsible if the unauthorised and wrongful act is not so connected with the authorised act as to be a mode of doing it, but is an independent act."

42 Later, the Chief Justice proceeded to analyse the conduct of the barmaid in Deatons v Flew at 539 [51]:

"...If, on the facts, it had been possible to treat maintaining order in the bar as one of the barmaid's responsibilities, and if, on the facts, it had been open to regard her conduct as an inappropriate response to disorder, then the jury could properly have held the employer liable in trespass. However, the barmaid's only responsibility was to serve drinks, and throwing a glass of beer at a customer could not be regarded as an improper method of doing that..."

43 In Sandstone DMC Pty Limited & Anor v Trajkovski & Anor [2006] NSWCA 205 the Court of Appeal was concerned to determine whether the employers of a security officer at a nightclub were liable for harm inflicted upon a patron when he was assaulted by the security officer after that officer had removed him from the nightclub. The patron was successful against the security officer's employer at first instance and the appeal was dismissed. In Sandstone, Ipp JA, with whom the other members of the court agreed, made this analysis as to the misconduct of the security officer, referring to the judgments in Lepore (at [19-[22]):

"19 Firstly, removing disorderly patrons and persuading them not to return to the nightclub was part of Mr Eurkul’s responsibilities and it was open to the trial judge to regard his conduct 'as an inappropriate response' (in the words of Gleeson CJ at 539, [51]) to Mr Trajkovski’s conduct.

20 Secondly, the judge’s unchallenged finding that the assault was committed 'to ensure that a troublesome patron would go on his way and leave the club vicinity' satisfied an element that Gummow and Hayne JJ said (at 591, [231]) was capable of establishing vicarious liability, namely, the doing of a wrongful act in intended pursuit of the employer’s interests or in intended performance of the contract of employment.

21 Thirdly, on his Honour’s finding, there was a close causal connection between the acts causing injury and the employment (the acts being perpetrated in the belief that the employers’ interests were being furthered) and there was a close temporal connection (a matter of seconds) between the completion of the physical removal and the assault. Thus, the element of a sufficiently close connection (required by Kirby J) was satisfied.

22 Irrespective of whether Mr Trajkovski gave any indication of his intention to return, on the judge’s findings, the assault was committed to persuade him not to return. On this basis, the assault was committed at a time when Mr Eurkul was continuing to carry out his duties as an employee. The assault was a vicious one, but the judge found that Mr Eurkul did not intend to cause Mr Trajkovski permanent or serious injuries. There was no finding that the assault was committed out of vindictiveness or spite; rather, the finding is that Mr Eurkul assaulted Mr Trajkovski because he thought that, by punching and kicking him, he would cause Mr Trajkovski to go on his way."

44 In Deatons Pty Limited v Flew the conduct of the barmaid who threw the beer from the glass and then the glass itself at a customer was determined to be conduct for which the employer was not vicariously liable. It was no part of her duties to keep order at the bar and her position simply required of her that she serve drinks to customers (see the analysis of Deatons by Gleeson CJ in Lepore at [50] and by Ipp JA in Sandstone at [15]).


 Vicarious Liability for Unauthorised Acts of Employees >>

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