Vicarious Liability for Unauthorised Acts of Employees

by Dana Wintermantel

Employers may be held vicariously liable for unauthorised acts of an employee, as long as the acts could be regarded as a mode (although an improper one) of performing the normal tasks of the employment.

Background

Mr Starks, a patron at the Bondi Hotel, was requested to leave the premises by a security guard. When he challenged the security guard's request, he was head-butted.

Mr Starks took exception to this treatment and subsequently claimed damages for his injuries against the security guard, the security guard's employer, the owner/occupier of the hotel and the hotel's licensee.

At first instance, the trial judge found that the security guard was liable, but rejected the claims against the employer, the owner/occupier of the hotel, and the hotel's licensee.

Decision on appeal

On appeal, a Full Court of the New South Wales Supreme Court held6 that the employer was vicariously liable for the security guard's actions, but that the owner/occupier of the hotel and the hotel's licensee were not.

Liability of the employer

The Full Court accepted the principle that an employer is vicariously liable only for a wrongful act committed by an employee if the act is within the 'scope of the employment'.

The court held that a security guard at business premises who removes a person with excessive force may still be acting in the course of their employment. Whether the force exercised by a security guard in removing a patron will be regarded as an independent act (ie outside the scope of their employment) or part of the security guard's duties (ie within the scope of their employment) will depend on factors such as whether there was any personal enmity between the security guard and the patron. That the force used to eject the person is excessive does not prevent the employer from being held vicariously liable for the act.

In this case, the court found that, although the security guard's act in head-butting the victim was unreasonable, uncalled for, and not a 'usual mode' to persuade a customer to leave hotel premises, the security guard had nonetheless acted in this way in the course of attempting to have the victim leave the premises – one of his duties as a security guard.

The court concluded that the employer was vicariously liable because the unauthorised act (the head-butt) was so closely connected with the authorised act (removal of the patron from the premises) that it constituted a mode of performing his regular duties.

Liability of the hotel and the licensee

The court accepted that the owner/occupier of the Bondi Hotel was not liable on the basis that:
  • they were not the employer of the security guard, but had engaged the employer of the security guard as an independent contractor;

  • they could be not liable for the actions of the security guard unless they had directly authorised the wrongful act; and

  • they could not have been said to have exercised a significant degree of control and direction over the actions of the security guard.

  • As there was no basis upon which the hotel could be made liable for the wrongful act of the security guard, the court found it unnecessary to consider whether the liability of the hotel and the licensee should be considered separately.
Implications

Employers should be aware that the fact that they have not authorised a particular act does not necessarily mean that they will be able to avoid vicarious liability for it. Vicarious liability may still arise if the unauthorised act is closely related to the tasks performed by the employee during the course of his or her regular employment.


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