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Excerpt from this article first published in Human Resources Magazine, Issue 143 - 11 December 2007
The NSW Court of Appeal has held that a security company was vicariously liable for the injuries inflicted on a customer of a pizza shop by its employed security guards. In Gregory Sprod v Public Relations Oriented Security Pty Limited, the Court of Appeal held the security company liable for the customer’s injuries even though it was satisfied that the security guards violently assaulted the customer.
The decision of the trial judge at first instance held that the security guards were not acting within the course of their employment but acting independently and therefore their employer, the security company, was not responsible for their actions. In overturning that decision, the Court of Appeal was satisfied that the conduct of the security guards was sufficiently connected with the acts of the security company, their employer, to make the employer liable for their actions.
On 22 December 2001 the victim of the attack (the “Customer”) had “been making a pest of himself at a pizza shop by drunken, aggressive, insulting and generally objectionable behaviour”. The owner of the pizza shop had an arrangement with the security company that provided security guards to the St Mary’s Band Club which was about 100 metres away from the shop. Under the arrangement, the security guards would attend the pizza shop to deal with troublemakers if called to do so. Sometime after midnight on 22 December 2001, the Customer came into “Dave’s Midnight Pizza with one or two others. He was very drunk, generally abusive and made extremely rude remarks to female patrons. In addition he slapped one of the patrons. The others with him were also causing trouble”.
The owner of the pizza shop made a call to the St Mary’s Band Club. Two security guards were dispatched to the pizza shop to remove the troublesome Customer.
It was accepted in evidence that after arriving at the shop, one of the security guards swung his elbow at the Customer but missed. The two security guards then dragged the Customer outside and, after telling the Customer to leave a number of times, walked him to a laneway about 100 metres from the pizza shop. The two security guards then violently assaulted the Customer leaving him unconscious and with severe head injuries from which he never fully recovered. While the assault was taking place two other security guards that had been dispatched from the club stood by as if they were keeping a lookout.
In coming to the conclusion that the albeit illegal acts of the security guards were connected with acts that they were authorised to perform by their employer, the Court of Appeal relied on previous decisions which adopted a statement set out in an earlier Supreme Court judgement, Flew v Deatons Pty Ltd (1949) 49 SR (NSW) 219 “but a master… is liable even for acts which he has not authorised, provided they are so connected with acts that he has authorised 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 authorises his servant to do, but also for the way in which he does it.”
While accepting that “it is not characteristic of the conduct of the provision of security services that security guards assault patrons unlawfully and criminally”, the Court of Appeal nevertheless held that “the guards assaulted the appellant in the course of fulfilling their duty which the respondent [the security company] entrusted to them.”
This is the latest in a number of cases where security companies have been held to be vicariously liable for the acts of their employed security guards. In other cases, employers in other industries and occupations have been held to be vicariously liable for the actions of their employees.
It is important that employers of employees who have dealings with third parties, including customers of the employer and the general public, ensure that the employees have a clear understanding of the conduct expected of them. Further, it is necessary that these employees are regularly reminded of that obligation and are properly supervised.
The employer may be held to be vicariously liable for the actions of an employee if it can be shown that the employee’s conduct is sufficiently connected with the duties authorised by the employer. The employer may still be vicariously liable even if the actions of the employee are negligent, reckless or illegal.
In the above case, the security company was engaged to control or remove unruly patrons at the club and at the pizza shop.
The Full Court held “The dominant cause of the assault was a desire on the part of the guards to do their duty by ensuring that the [Customer] would not again make a pest of himself at the shop, would not return to the shop, and would not again molest customers.”
The court was persuaded by three factors in adopting that view: At no stage did the security guards appear to lose their tempers before entering the laneway; On returning to the pizza shop the guards said something to a patron to the effect that the Customer would not return to cause any more trouble; and, the four guards acted in concert with two guards keeping watch.
Gordon Jervis
Senior Associate
