Employer Held Vicariously Liable for Bouncers' "Bloodlust"

Sprod v Public Relations Oriented Security Pty Limited [2007] NSW CA 319

Employers can be liable for the improper acts of their employees
Employers must educate employees about what constitutes appropriate action and should perform due diligence during recruitment

In the context of hotels and their security arrangements, the New South Wales Court of Appeal has overturned one of the few decisions allowing an employer to avoid the vicarious liability for the unauthorised actions of its employee.

Background

Shortly before 1.30 am on Saturday, 22 December 2001, the appellant, Gregory Sprod, was intoxicated and acting abusively towards patrons of a pizza shop.
Security guards were called to the premises, and asked Sprod to leave. Sprod refused. Four security guards then escorted Sprod down the road to a laneway some 56 metres away.
Sprod was brutally assaulted by two of the security guards, whilst the other two stood watch.
Sprod sued the security guards' employer. The employer argued that it was not vicariously liable for the acts of the security guards because those acts were unauthorised and extended beyond the boundaries of the security guards' employment.

First instance decision

At first instance, Cooper AJ of the New South Wales Supreme Court held that the security guards had acted, in effect, in a "frolic of their own" and that the injury was caused by acts performed outside the scope of their employment.

His Honour was influenced by the following relevant factors:
(a) the degree of violence in the assault;

(b) the gravity of the criminal acts;

(d) the fact that the force exerted was excessive and went well beyond what was reasonable.

His Honour concluded that the assault was motivated by the guards' blood lust and was in no way connected with what they were employed to do. Accordingly, Sprod failed at first instance against the guards' employer.

Court of Appeal's decision

Ipp JA provided the leading judgment in the Court of Appeal, with Tobias JA and Hislop J agreeing.

Ipp JA noted that there will be circumstances under which an employer may become vicariously liable for the unauthorised acts of its employees, even where those acts are criminal and even when the employee is expressly instructed not to perform those acts or if the act is solely for the benefit of the employee. He acknowledged, however, that this is not an area of law characterised by clarity of principle, and examined a number of High Court and NSW Court of Appeal decisions on the issue.

Perhaps the most relevant case considered and closely followed was the Court of Appeal's decision in Starks v RSM Security Pty Limited (2004) Aust Torts Reports 81-768 (per Beasley JA, with Sheller JA and Grove J agreeing). That too was a case involving security guards. In that matter, it was held that an employer would be less likely to be held vicariously liable for the acts of its employed security guards if, in addition to unnecessary violence, there were also factors of personal animosity.

Following this line of reasoning, Ipp JA noted that there was no evidence in Sprod's case of any factors suggesting personal animosity. Ipp JA was satisfied that the guards had acted in concert which indicated a planned and deliberate course of conduct; it was not a gratuitous, unplanned attack.

He specifically pointed to the following:
(a) Up to the point of the assault, the security guards had shown restraint in escorting the appellant;

(b) On returning to the shop, the security guards commented that the appellant would not be causing any further trouble that night, which was indicative that they believed that they had done their job; and

(c) Two guards stood watch during the attack, which was indicative of "a planned and deliberate course of conduct and not a spontaneous act triggered by personal animosity and pure personal vindictiveness."

Ipp JA was of the view that the above facts did not sit comfortably with the trial judge's conclusion that the assault was motivated "by the bloodlust of the security officers involved". In His Honour's view, the dominant cause of the assault was a desire on the part of the guards to do their duty by ensuring Sprod would not return to the shop. Ipp JA formed the view that the assault was "incidental" to their employment and had a great deal to do with the performance of the guards' duties. Their "conduct was so connected with acts that the [employer] had authorised them to perform that they may be regarded as modes - although highly improper modes - of doing them."

Conclusion

This case reinforces the fact that employers can be liable for the improper acts of their employees arising from ill-judgment but done in the supposed furtherance of the master's interests. It highlights the increasing difficulty faced by employers seeking to avoid vicarious liability for the unauthorised acts of their employees. To do so, an employer must be able to satisfy a court that the employee's actions were in no way 'incidental' to the performance of their duties.