Starks v RSM Security Pty Ltd
[2004] NSWCA 351
(New South Wales Court of Appeal)
(relevant to Chapter 12, under heading ‘Course of Employment’, following Deatons
v Flew on p 382)
An employer may be vicariously liable for a criminal assault committed by an
employee where the act of the employee is an unauthorised mode of doing what the
employee was employed to do. In such a case, the act of the employee is within the
course of employment.
[The plaintiff/appellant, Mr Byron Starks, a patron at the Bondi Hotel, was
asked to leave by a security officer, Mr Eugene Wilson, the first defendant.
When the plaintiff/appellant, who was not acting in any way aggressively,
questioned this request, the first defendant head-butted him causing personal
injury. In respect of this incident, the first defendant was charged with the
criminal offence of assault and pleaded guilty.
The plaintiff/appellant commenced proceedings in the District Court of
New South Wales to recover damages for personal injury. The primary
judge, Garling DCJ, awarded the plaintiff/appellant damages against the first
defendant (the security officer). However, his Honour rejected the plaintiff’s
claims against (1) the security officer’s employer, RSM Security Pty Ltd, the
second defendant/first respondent, and (2) the hotel owner and occupier,
Hotel Bondi Pty Ltd, the third defendant/second respondent, and the hotel
licensee, Mr Cyril Maloney, the fourth defendant/third respondent.
The New South Wales Court of Appeal allowed the plaintiff/appellant’s
appeal in respect of the claim against the second defendant/first respondent
(the security officer’s employer) but dismissed the plaintiff/appellant’s
appeal in respect of the claims against the third defendant/second respondent
(the hotel owner and occupier) and the fourth defendant/third respondent
(the hotel licensee).]
Beazley JA: … 4.
… [T]he matter to be determined raises two important
questions. The first is the circumstances in which an employer can be vicariously
liable for an unauthorised and illegal act of its employee. The second is the further
question of when a party, in this case the hotel owner and the licensee, are
vicariously liable for such acts of a third party. …
12. An employer is vicariously liable for a tort or other actionable wrong
committed by an employee in the course of employment. However, it is not every
actionable wrong committed by an employee that will give rise to vicarious liability.
Whether or not an employer is liable depends upon the scope of the employment.
Thus, an employer will not be vicariously liable for a wrongful act of the employee
if it is committed by the employee “on a frolic of his own”: see Morris v CW Martin
1
Starks v RSM Security Pty Ltd
& Sons Limited [1966] 1 QB 716 at 733; New South Wales v Lepore (2003) 212
CLR 511 at [41]. …
13. It is well settled that an employer is liable for a wrongful act of the
employee if the employer has authorised it. An employer may also be liable for
unauthorised acts. That is also well settled. The difficulty that arises in the latter
case is determining the circumstances in which an employer will be so liable. This
was the question under consideration in Lepore. There Gleeson CJ restated, at [42],
Salmond’s formulation of the principle in Salmond, Law of Torts, namely that:
… an employer is liable even for unauthorised acts if they are so connected
with authorised 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.
14. The employer [the second defendant/first respondent, RSM Security Pty
Ltd] submitted that the case was indistinguishable from the facts in Deatons Pty
Limited v Flew (1949) 79 CLR 370. In that case, a barmaid threw a glass of beer into
the face of the plaintiff. The plaintiff was also hit by the glass. The plaintiff alleged
that the barmaid had thrown it at him, the barmaid contending however that in
throwing the beer at the plaintiff, the glass slipped out of her hand. There was also a
dispute as to whether the plaintiff had spoken to the barmaid “using filthy
expressions” and whether he had struck her on the side of the face.
15. The plaintiff sued the barmaid and her employer. The jury found a verdict
against both. In the High Court, the employer was found not to be liable as the
barmaid was not acting in the course of her employment or doing any act connected
with or incidental to the work that she was employed to perform. …
19. In the present case, Mr Wilson requested Mr Starks to leave the hotel.
Although the terms of his employment were not in evidence, there was no issue in
the case as to his entitlement to do so. That was part of his job if the circumstances
called for it.
20. In his written submissions, counsel for the respondents pointed out that
there was no evidence to indicate that Mr Wilson was required to make any physical
contact with Mr Starks in order to carry out his duties. However, in argument before
the Court, he dealt with the argument that force might be used. Section 103(1) of the
Liquor Act 1982 provides that a person employed in the position of Mr Wilson
“may turn out, or cause to be turned out” persons acting, for example, in a disorderly
or drunken way. As a matter of the plain language of the section and common
experience, it might be expected that force could be used in such circumstances.
21. Counsel for the respondents accepted that there might be occasions when
excessive force was used for which the employer would be liable. He accepted, for
example, that if in the course of escorting a customer from the premises a security
officer used excessive force, then the employer may well be liable. The employer
submitted however, that Mr Wilson’s action in head-butting Mr Starks was a
gratuitous and unprovoked attack which had nothing to do with his duties as a
security guard and was not simply an unauthorised mode of doing that for which he
was employed. …
22. There may of course be questions of degree as to whether an unexpected
mode of the execution of an employee’s duties will give rise to vicarious liability, as
Gleeson CJ pointed out in Lepore at [54]:
2
Starks v RSM Security Pty Ltd
Where acts of physical violence 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.
23. … In Lepore, Gleeson CJ at [51] postulated that if, in Deatons, it had been
established that part of the barmaid’s duties was to keep order in the bar and “[i]f, 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, an employer would be less likely to be held vicariously liable if, in
addition to unnecessary violence there were other factors such as personal
animosity. In such a case, a conclusion might more readily be drawn that an attack
was an independent act directed against the victim even though the employee was
carrying out duties at the time.
24. In this case, there was no evidence that Mr Starks acted aggressively
towards Mr Wilson. Counsel for the respondents relied upon this as indicating that
the assault was unprovoked and had nothing to do with the employment. However,
the fact that there was no evidence of aggression or other behaviour that might have
provoked Mr Wilson’s conduct, whilst relevant, is not determinative of whether Mr
Wilson was acting in the course of his employment when he assaulted Mr Starks.
Although Mr Wilson’s action in head-butting Mr Starks was unreasonable, uncalled
for, and not a usual mode for a security officer to use to persuade a customer to
leave hotel premises, the fact is, Mr Wilson acted in that way in the course of
seeking to have Mr Starks leave the premises. In my opinion, his action was so
directly connected with his authorised acts that this case is one that falls on that side
of the line that makes the employer vicariously liable. …
[Her Honour then considered Mr Sparks’ claims against the hotel owner and
occupier and the hotel licensee and concluded that, in the circumstances of
the present case, there was no basis on which the hotel owner and occupier
could be held vicariously liable for a tort committed by an employee (the
security officer) of an independent contractor (RSM Security Pty Ltd). On
this basis, her Honour found it unnecessary to consider separately the
liability of the hotel licensee. In reaching these conclusions her Honour
observed that there was no evidence of the precise relationship between the
hotel owner and occupier and RSM Security Pty Ltd. For example, there
was no evidence as to whether, in carrying out security arrangements, RSM
Security Pty Ltd acted as the representative of the hotel owner and occupier
or whether the security officers were subject to the directions of the hotel
owner and occupier or wore a uniform which identified them with the hotel
owner and occupier.
Sheller JA and Grove J agreed with Beazley JA.]
Appeal allowed in part and dismissed in part
3