The concept of vicarious liability is well known to most lawyers and quite familiar to many employers. However, the actual application of the concept, and the genuine risk it poses to employers, may be difficult to assess and deal with in practice. This is more so the case when the employee’s act in question is intentional and/or criminal.
It is well established that an employer may be vicariously liable for an employee’s criminal offence. Remarkably, the leading authority is a House of Lords’ decision in which a firm of lawyers was held to be liable for the fraudulent conduct of its clerk committed in the course of his employment at the law firm.
Despite this leading authority, it can still be extremely difficult to establish vicarious liability when the conduct is intentional or unlawful. Two recent decisions have examined this aspect of vicarious liability.
Decision #1: Garrett v. Victorian WorkCover Authority  VSCA 144
NB: As the employer was de-registered before proceedings were commenced, the Plaintiff brought proceedings directly against the Victorian WorkCover Authority.
The Plaintiff and a fellow employee, Corey Thrower (Thrower), were employed by Staff Factory Pty Ltd (Staff) as armed security guards. One day, whilst the Plaintiff and Thrower were seated in a work vehicle in the course of their employment, Thrower pulled his loaded firearm out of his holster and pointed it directly at the Plaintiff’s head (incident).
There was no apparent reason for Thrower to point the loaded firearm at the Plaintiff. There had not been any ill-feeling between the two employees. Thrower pointed the weapon at the Plaintiff for some 15 seconds, and then re-holstered his weapon.
No discussion nor argument took place between the two employees about the incident; however, after the incident, the Plaintiff said to Thrower – ‘I don’t appreciate a loaded firearm pointed at me’.
Thrower’s employment was terminated by Staff. He later pleaded guilty to five charges of unlawful assault.
The Plaintiff allegedly sustained Post Traumatic Stress Disorder and a Major Depressive Disorder due to the incident. The Plaintiff therefore sued Staff for the following reasons:
- Staff failed to carry out sufficient background checks for Thrower, and failed to adequately train Thrower; and
- Staff was vicariously liable for Thrower’s intentional act.
Supreme Court Trial
Thrower did not give evidence at the trial. No party could inform the Court why Thrower pointed a loaded weapon at the Plaintiff. The Plaintiff suggested Thrower was tired or bored.
After a six day trial, the Judge dismissed the Plaintiff’s claim.
Her Honour found that Staff did not breach its duty of care to the Plaintiff because it was not reasonably foreseeable that a properly trained and certified armed security guard would unexpectedly point a loaded weapon at a fellow employee without any justification. Her Honour also could not find any evidence that Staff’s ‘culture of gun safety’ was lacking.
After considering both Australian and United Kingdom authorities, Her Honour found that Staff was not vicariously liable for Thrower’s intentional act. Her Honour found that Thrower’s conduct was not done in furtherance of Staff’s interests and Thrower was not in a position to take advantage of his employment status with the Plaintiff because the men were co-workers and one did not supervise the other.
The Plaintiff appealed the decision solely in respect of the vicarious liability issue.
Court of Appeal Trial
The Court of Appeal carefully considered and discussed the authorities pertinent to situations where injuries have been sustained by an employee due to the intentional, and often criminal, act of a fellow employee. The Court of Appeal’s discussion of those authorities demonstrates the difficulty involved in determining vicarious liability in some instances.
Having considered the authorities, the Court of Appeal dismissed the Plaintiff’s appeal for the following reasons:
- Unlike the facts relevant to other authorities, the relationship between the Plaintiff and Thrower was not such that one had the ability to exercise some power over the other.
- Thrower’s actions were completely disconnected from the role he was required to perform as a security guard whilst employed by Staff.
- Even though Thrower’s employment provided him with the opportunity to commit the intentional and wrongful act, his employment did not constitute the occasion for the commission of his conduct.
Decision #2: Mason v. State of Queensland  QDC 80
The Plaintiff was employed as a Custodial Corrections Officer by the State of Queensland. One day, at work, the Plaintiff arrived at his post and was assaulted by his immediate supervisor. The supervisor unexpectedly struck the Plaintiff as the two men were having a disagreement about a prisoner.
District Court Trial
The Judge held that the authorities support the principle that an employee’s wrongful acts can be regarded as being committed in the scope or course of that employee’s employment.
In this instance, the wrongful act of the immediate supervisor was not in essence any manifestation of some animus or emotional outburst between employees or in respect of an employee. Rather, the wrongful act of the immediate supervisor was a wrongful form of management of a subordinate by a superior and in the exercise of the authority vested in that superior by the employer.
When dealing with injuries or claims which potentially involve vicarious liability, there is a dangerous propensity for employers to automatically assume there will be no vicarious liability because the employee’s intentional conduct was criminal and the employee was ‘on a frolic’. Employers should be aware of making this incorrect assumption.
These two recent decisions highlight the fact that where an employee’s employment not only provides an opportunity to commit an intentional act, but the employment was also the occasion for the employee’s commission of an unlawful act, such circumstances could justify a finding that the employer is vicariously liable for such wrongdoing.
Therefore, employers must be mindful of an employee’s propensity to undertake an intentional or criminal act, and the relationship between that employee and the fellow employee who suffers loss as a result. The former element affects the employer’s ability to take proactive steps to avoid an unfortunate situation, and the latter element affects the employer’s ability to implement procedures, policies and systems to avoid an unfortunate situation.
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Published: 27 June 2023