News
Security guards' boss left with a fight on his hands
First published in the Independent, 2 April 2008.
There is a curious concept in employment law called vicarious liability.
It derives from the days of Master and Servant (not a great distance from Master and Slave – when ownership was a part of the relationship).
In plain English, it means that the actions of an employee are, for the purposes of the law, regarded as the actions of the employer.
To some extent, of course, this accords with common-sense. The employees work for the employer’s benefit. They perform their tasks at the employer’s direction. Shouldn’t the employer therefore bear the risk of any consequences which follow?
Perhaps because of the nature of the employment relationship, and the many different permutations of things that may occur within it, this general principle of seemingly simple application can often present difficult questions. The recent decision of the New South Wales Court of Appeal in Sprod v Public Relations Oriented Security Pty Limited [2007] NSWCA 319 illustrates a complexity that may arise.
The case centres on a rather unfortunate series of events which occurred outside a pizza parlour. Mr Sprod, who ended up being the claimant in court, had been making a pest of himself. He was drunk and engaged in aggressive, insulting and generally objectionable behaviour in the pizza parlour.
The owner of the pizza parlour was no stranger to incidents of this kind. He had an arrangement with a nearby night club allowing him to call upon the services of its security guards in this type of situation. That was part of the chain of events that led to a disastrous outcome.
Two security guards came over to the pizza parlour and removed Sprod. Although Sprod resisted, and a considerable degree of pushing and shoving ensued, the security guards managed to take him outside into an alleyway. There was some evidence that Sprod had removed his shirt and had faced the security guards with clenched fists, as if he was baiting a fight.
The events which followed were most unfortunate indeed. There was an altercation in the alleyway which left Sprod lying a pool of blood. He was hospitalised for almost four months and was left with permanent brain damage.
Under Australian law it is possible to bring an action for personal injury. So Sprod raised a claim, seeking compensation for his horrific injuries.
But who should - and could - he claim against?
The two individuals responsible for his injuries were, of course, obvious targets. But, as so often seems to be the case in the law, it is most unlikely that they would have had the financial means to allow for any significant payment of compensation. A more creative approach to the claim was required.
Sprod attempted to rely upon the doctrine of vicarious liability. He alleged that the bouncers were acting in the course of their employment when they had assaulted him and that, as a result, he could bring his claim against the (more financially significant) employer – a security company.
The security guards had, after all, been on duty at the time of the assault, and they had attended the pizza parlour as part of an arrangement negotiated between its owner and their boss. Couldn’t it therefore be said that they were acting on their employer’s directions, as part of their job?
The contrary argument, of course, was that the bouncers had certainly not been employed for the purpose of seriously assaulting members of the public. In committing a horrendous assault surely they were acting outside the boundaries of their employment and contrary to their employer’s direction.
The court carefully reviewed all of the relevant legal authorities in the area. It concluded that there were circumstances under which an employer could become vicariously liable for unauthorised acts of an employee, even where those acts were criminal, and even when the employer had expressly instructed the employee to not to perform them.
In this case, the court found that the conduct of the guards was so closely connected with the types of tasks that they were authorised to perform, they should be regarded as a mode – although a highly improper one – of doing their job.
For that reason, the court allowed the application of vicarious liability, allowing Sprod to bring his claim against the security company.
This is a difficult area – and certainly an unfortunate and difficult case. It does, however, provide a good illustration of the doctrine of vicarious liability in employment law.
