Garrett v Victorian WorkCover Authority

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT BALLARAT

COMMON LAW DIVISION

CIVIL CIRCUIT LIST

S ECI 2019 03114

LANCE JAMES GARRETT	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	Tsalamandris J
WHERE HELD:	Ballarat
DATE OF HEARING:	25 - 29 July 2022, 15 August 2022
DATE OF JUDGMENT:	21 October 2022
CASE MAY BE CITED AS:	Garrett v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2022] VSC 623

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TORT – Personal injury – Negligence – Vicarious liability of employer for unlawful act by fellow employee upon co-worker – Negligence – Psychiatric injury – Deatons Pty Ltd v Flew (1949) 79 CLR 370 – Blake v JR Perry Nominees Pty Ltd (2012) 38 VR 123 – Prince Alfred College Incorporated v ADC (2016) 258 CLR 134.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	J Brett KC with A Dimsey	Stringer Clark Lawyers
For the Defendant	R Stanley with O Lesage	IDP Lawyers

HER HONOUR:

Preliminary

On 28 June 2014, Mr Lance Garrett and his co-worker, Mr Corey Thrower, were working as armed security guards, employed by The Staff Factory Pty Ltd (‘the defendant’).[1] Their work on this day involved escorting currency printing equipment from the Royal Australian Mint (‘the Mint’) to the Kirk Group (‘Kirk’s), located in Mulgrave, Victoria. Whilst waiting at Kirk’s for the equipment to be serviced, and for no known reason, Mr Thrower pulled his gun out of his holster and pointed it at Mr Garrett’s head (‘the gun incident’). Mr Garrett contends that as a result of the actions of Mr Thrower he has developed psychiatric injuries, including post-traumatic stress disorder.
[1]Mr Garrett was employed by ACN 133 838 909 Pty Ltd (formerly known as The Staff Factory Pty Ltd), which has since been deregistered. On 12 July 2022, Mr Garrett was granted leave to file an amended writ and statement of claim naming the Victorian WorkCover Authority as the defendant, pursuant to section 601AG of the Corporations Act 2001 (Cth), as insurer of The Staff Factory Pty Ltd.

Mr Garrett alleges that the defendant is liable in negligence for, inter alia, failing to carry out sufficient background checks and/or screen Mr Thrower for his suitability to work as an armed guard. In addition, Mr Garrett alleges that the defendant did not adequately train and instruct Mr Thrower in respect of appropriate firearm usage, nor did it enforce its policies and procedures which related to gun safety.

Further, and in the alternative, Mr Garrett alleges that the defendant is vicariously liable for the intentional actions of Mr Thrower on the basis that the defendant issued Mr Thrower with the loaded gun and provided the close proximity of Mr Thrower to Mr Garrett over a long shift which invited boredom and fatigue. Mr Garrett contends that, in carrying out the gun incident, Mr Thrower engaged in an unauthorised mode of performing an authorised act that was inextricably interwoven with the performance of his duties as an armed security guard.

Mr Garrett has not worked since the gun incident and seeks damages for his pain and suffering and loss of enjoyment of life, as well as past loss of earnings, and future loss of earning capacity.[2]
[2]In support of his damages claim, Mr Garrett relied upon oral evidence from his current partner Nicole Graham, and tendered numerous medical reports, from both treating practitioners and medico-legal psychiatrists.

The defendant denies both negligence and vicarious liability. The defendant claims that gun safety was part of its workplace culture and that this was instilled in its employees from the time they commenced their employment. In relation to the suitability of Mr Thrower to work as an armed guard, the defendant emphasised that he had previously worked for the defendant as an unarmed security guard, during which time there had been no concerns in respect of his character. Mr Thrower subsequently obtained the necessary qualifications to work as an armed security officer, and the defendant said that there was nothing to suggest he was unfit to work in that role prior to the gun incident. The defendant contends that, beyond the solitary fact that Mr Thrower’s employment afforded him the opportunity to commit the act, the gun incident was an unauthorised and illegal act, performed outside the scope of Mr Thrower’s employment, and was not in furtherance of his employment duties or the defendant’s interests.

For the reasons that follow, I am not satisfied that the defendant was either negligent or vicariously liable, and I therefore dismiss Mr Garrett’s claim.

Evidence relevant to liability
Mr Garrett’s evidence

Mr Garrett was born in 1983 and completed his schooling to grade 10 at Ballarat Secondary College. He thereafter undertook a Certificate II in Building and Construction. Mr Garrett said that he worked in various jobs in the Ballarat area until 2008 when he obtained employment as a driller’s assistant in Western Australia on a ‘fly-in, fly-out’ basis. In 2009, Mr Garrett completed a Certificate II in unarmed guard and crowd control. Thereafter, for the weeks he was not working in Western Australia, Mr Garrett did some security work.

In 2012, Mr Garrett left his job as a driller’s assistant and returned to live permanently in Victoria, at which time he worked full time as an unarmed security guard, for various companies.

In September 2013, Mr Garrett completed a Certificate III in security with a specialisation in armed guard and cash in transit. Mr Garrett’s evidence was that the course had a focus on gun safety, including instruction as to the circumstances that would permit the drawing of a gun from its holster, and that discharging a firearm was a ‘last resort’.

Mr Garrett also obtained his gun licence. His evidence was that he was required to obtain a perfect score in order to pass the gun licence examination.

Mr Garrett commenced employment with the defendant approximately one month prior to the gun incident. Mr Garrett said that he applied for the role after he saw the job advertisement on Seek.com, and was then asked to attend the defendant’s premises in Docklands for an interview. Mr Garrett gave evidence that he was interviewed for approximately an hour by the defendant’s operations manager, Mr Robert Muddyman and the defendant’s director, Mr Mark Hollis. He gave evidence that during the interview he was asked about his employment history and the training he had obtained in the firearms industry. Mr Garrett said that after the interview he believed the defendant contacted the character references he had provided on his application form. Mr Garrett said that within a week of the interview Mr Hollis offered him the job, with his first shift commencing the following day.

Mr Garrett gave evidence that over the following month he was regularly offered shifts on a casual basis. Mr Garrett said that the shifts involved him doing sub-contract work for Wilson Security (‘Wilson’). Mr Garrett’s evidence was that at the start of each shift he was required to collect a gun from the defendant’s premises. He said that this involved taking the gun out of a cabinet, signing for it, and loading it in the designated area. Mr Garrett gave evidence that the gun was loaded with six bullets and that he also carried two speed-loaders. He said that he would then drive his car to the premises of Wilson, where he would leave his vehicle and collect a Wilson vehicle. Next, he would drive to the Mint and thereafter escort a Mint vehicle carrying currency cylinders to Kirk’s, where those cylinders were serviced. Mr Garrett said that the length of wait time at Kirk’s depended upon how many cylinders needed to be serviced on the given day. Once the service was complete, Mr Garrett said that he and his co-worker would escort the Mint vehicle back to the Mint. He would then drive back to Wilson, collect his vehicle, and drive to the defendant’s premises to sign the guns out.

Mr Garrett was asked about two of the defendant’s tendered documents – the Staff Factory Standard Operating Procedures (‘the operating manual’) and the Staff Factory Firearms Policy (‘the firearms policy’). It was put to Mr Garrett that he was given these documents when he commenced employment with the defendant. Mr Garrett’s evidence in respect of these documents fluctuated from him not being able to recall such documents, to acknowledging that he may have received them and had since forgotten, to him flatly denying that he ever received a copy of either document.

Mr Garrett accepted that Mr Hollis spoke to him about the requirements of the job, had impressed upon him that he did not condone ‘cowboy style behaviour’, and that he would take ‘no nonsense’ from his staff. Further, Mr Garrett accepted that after the initial interview, and on his first day at work, he was shown the process for safely loading and unloading the gun. He also agreed that it was stressed to him that the gun was to stay in the holster until he returned to the defendant’s premises to unload it at the end of the shift.

When Mr Garrett was asked if there were posters advocating gun safety at the defendant’s premises, he initially stated that he was ‘not 100 per cent sure’, but later in re-examination denied there were such posters.

Mr Garrett gave evidence that on shifts when he escorted the Mint vehicle to and from Kirk’s, he would work with another colleague, and on one occasion prior to the gun incident, he had worked such a shift with Mr Thrower.

Mr Garrett said that on the day prior to the gun incident he had worked a 12-hour shift which finished at approximately 7pm. He said that when driving home after this shift, one of the night managers called him and asked if he could work again the next morning, to which Mr Garrett agreed.

Mr Garrett gave evidence that on the day of the gun incident his shift started at 5am, and he left home at about 3:45am. Mr Garrett said he was allocated to work with Mr Thrower and they both carried .38 Smith & Wesson guns, which were loaded. Mr Garrett said that they drove in his car from the defendant’s premises to Wilson where they collected a Wilson vehicle, drove to the Mint, and then escorted a Mint truck to Kirk’s. Mr Garrett gave evidence that Mr Thrower slept in the car for part of the drive from the Mint to Kirk’s. Mr Garrett said that only one cylinder was to be serviced at Kirk’s on this day, and that he and Mr Thrower waited for about 1 to 2 hours for the service to be completed.

Mr Garrett’s evidence in relation to the gun incident was that, after the cylinder was loaded into the Mint truck, he was sitting in the car and Mr Thrower was ‘having a smoke’ on his left hand side. Mr Garrett said that he turned around to find that Mr Thrower had pulled his gun out of his holster and was pointing it ‘right at [Mr Garrett’s] face’. Mr Garrett said that he ‘was looking directly down the barrel’.

According to Mr Garrett, Mr Thrower stayed in this position for 10 to 15 seconds, during which time Mr Garrett said that he felt ‘[f]rozen. Just frozen. Just worthless, because I couldn’t withdraw mine.’

Mr Garrett said that Mr Thrower then put his gun back in his holster and they left Kirk’s and drove back to the Mint. Mr Garrett said that on the drive back he said to Mr Thrower ‘I don’t appreciate a loaded firearm pointed at me,’ but was otherwise quiet for the remainder of the trip. Mr Garrett said that he did not want to be in the car with Mr Thrower but felt that he could not ‘say or do anything’.

Whilst this is irrelevant to the determination of his claim, for the sake of completeness, I note that Mr Garrett denied he said anything to provoke the gun incident or that there had been any ill-feeling between him and Mr Thrower.

Mr Garrett said that after the shift ended and he returned home, he reported the gun incident to ‘Rob’ the defendant’s night manager, and Mr Hollis. Mr Garrett also reported the gun incident to police at the Ballarat Police Station.

At trial, Mr Garrett produced and tendered a print out of an email sent from his Hotmail account to the investigating police officer at Ballarat Police station, which was sent on 30 June 2014 at 8:10pm (‘the email’). The email indicated that it was the first of three pages. Mr Garrett said the email had two attachments, which he claimed were screenshots of two photographs posted on Mr Thrower’s Instagram page. Mr Garrett said that his then wife Kylie had sent the email to the investigating police officer in support of his report of the gun incident. While Mr Garrett’s evidence was that he was not the author of the email and did not see the email at the time it was sent by Kylie, he claimed that he subsequently saw the email in his email account history.

In respect of the two purported attachments, Mr Garrett tendered a screenshot of an Instagram account in the name of ‘cozzathrower’, which showed a photograph of Mr Thrower smiling whilst holding a gun. The comment accompanying the photograph stated ‘There giving me a gun :D’. This Instagram post had a posting date of 32 weeks prior.[3] The screenshot captures the names of some of the Instagram followers who liked the post, including one named ‘fuckmingerseatpingers’.
[3]I indicated to the parties that I took judicial notice of the reference to 32 weeks as being the period of time between when the photograph was posted on the said Instagram account and the time that the screenshot of it was taken.

Mr Garrett gave evidence that he also recalled a second Instagram post by Mr Thrower which showed him holding two guns, with a posting date of 35 weeks prior. Mr Garrett said he believed he had provided both photographs to his solicitors.[4] When Mr Garrett was cross-examined about his failure to produce this second photograph, Mr Garrett said that he had not used his Hotmail email address for seven years, and his attempts to verify his account and gain access to it were unsuccessful.
[4]Mr Garrett’s solicitor was called to give evidence on this point and said that the file did not include a photograph of Mr Thrower holding two guns.

Mr Hollis’ evidence

Mr Mark Hollis was the director and owner of the defendant from approximately March 2009 until March 2015. Mr Hollis said that he had worked in the security industry from 1996 until he established the defendant company, including in the Magistrates’ Court, Commonwealth Law Courts, and in a management role at Chubb Security.

Mr Hollis said that The Staff Factory was initially set up in New Zealand and soon thereafter, in Victoria. Mr Hollis explained that the defendant provided security labour hire services to clients which included the Department of Defence and Wilson. Mr Hollis gave evidence that the company had approximately 1,000 staff with around 120 staff employed on a full-time and part-time basis, with varying levels of skill. Mr Hollis said that 10 to 15 staff members were employed as armed security guards.

Mr Hollis said that he could not expressly recall the hiring of Mr Thrower. Instead, Mr Hollis gave evidence as to the defendant’s standard process for the recruitment, hire, and induction of its staff.

Mr Hollis said that the defendant’s recruitment process involved an initial telephone discussion with the applicant to gauge their language skills, comprehension, and to ensure the applicant had the requisite level of security certification. Mr Hollis’ evidence was that the purpose of this general conversation was to build rapport with the applicant. After this phone discussion, the applicant would be invited to attend the defendant’s office to complete an application form and be interviewed. Mr Hollis said that the application form requested information such as the previous work experience and licences held by the applicant, together with a basic aptitude test. Mr Hollis said that the application form also provided three spaces for referees, which could be either professional or personal. Mr Hollis gave evidence that the defendant’s operations manager, Mr Muddyman, or Tyler Henry (human resources), would conduct the reference checks. Mr Hollis said the application did not require that referees be a particular type of individual and in cross-examination conceded that it was possible that such referees could be family, friends, or even Instagram followers of the candidate.

Mr Hollis gave evidence that part of the defendant’s recruitment process for armed and unarmed security guards included checking that the applicant had a current security licence with the Victoria Police Licensing and Regulation Division (‘LRD’). Mr Hollis said that as part of the process to obtain LRD approval to work as a security guard, the applicant is required to prove that they have completed the necessary security course and disclose whether they have any criminal convictions. Once approved, the applicant must then pay a fee to receive their security guard licence. Mr Hollis’ evidence was that a photocopy of the applicant’s security licence, driver’s licence and resume would be placed on the defendant’s file.

Mr Hollis gave evidence that Mr Muddyman and Mr Henry conducted the majority of the interviews of prospective staff members, although Mr Hollis did ‘some of them’.

Mr Hollis said that when interviewing applicants, the defendant was looking for people that satisfied the ‘three Ps’. That is, they were required to be professional, punctual and presentable.

Mr Hollis gave evidence that it was the defendant’s ‘standard process’ to provide a copy of the operating manual to all staff upon commencement of their employment. Pausing here, I note that this document is 66 pages long and contains ‘an overview of the essential policies and procedures’. The operating manual states that employees need to conduct their role in an ‘efficient, honest and professional manner.’ The operating manual also sets out a mission statement, organisational structure of the defendant’s business, and its values and philosophy.

Relevant to this claim, the operating manual states that the company’s induction training course is two days and includes topics such as company policies and procedures, corporate philosophy, and conditions of employment. In cross-examination, Mr Hollis accepted that the induction occurred over a period of 30 minutes to one hour, which involved showing the new employee around, and outlining the company’s expectations. Mr Hollis said that part of the induction involved showing new employees the designated area for loading and unloading guns and having a conversation about the importance of professionalism with a firearm, including justification for the use of a firearm. Mr Hollis said that there was ‘no grey area’ in respect of this. Mr Hollis also said despite the induction occurring within an hour, he believed the defendant was able to get all the information across to new employees.

Mr Hollis was cross-examined on the ‘summary/instant dismissal’ policy contained in the operating manual, which reads as follows:
In very rare circumstances, instant dismissal without payment of notice periods in lieu may occur. Such circumstances may include:
·Fraud or theft
·Gross abuse of a company policy
·Violence or threat to another person
·Negligence or dereliction of duty resulting in significant damage to persons or property.
In relation to circumstances which may be considered ‘violence or threat to another person’, Mr Hollis conceded that this statement was not strongly worded in that it did not state that such conduct would lead to instant dismissal. Instead, Mr Hollis said that if serious misconduct was found after an investigation, that employee would be immediately dismissed.

Mr Hollis gave evidence that it was the defendant’s standard procedure to provide armed guards with a copy of its firearms policy at the commencement of their employment. This document is 14 pages long, and states that its purpose is ’to detail [the defendant’s] minimum requirements in relation to the purchasing, issue /receipt, storage and handling of firearms used on [the defendant’s] business.’

Under part 4, titled ‘Responsibilities’, the firearms policy states that:

The Director is responsible for the purchasing, safe handling, custody, licensing and control of all firearms held by The Staff Factory. He is also responsible for ensuring the provisions of this procedure are strictly enforced.
The Director is responsible for the safe handling, custody licensing and control of all firearms held in his/her State. The Director is also responsible for the enforcement of this procedure and strict compliance with applicable State/Federal legislation governing firearms.

Mr Hollis acknowledged that as the director he was responsible for the safe handling of firearms and enforcement of the procedure. However, Mr Hollis did not accept that this meant he was responsible for the conduct of Mr Thrower. Mr Hollis explained:

I was under the understanding [Mr Thrower] was very clear, we had explained to him what our process was, what our understanding was and… I can’t even begin to understand why [Mr Thrower] would draw that firearm out at Lance Garrett.

Part 5.6 of the policy is titled ‘Issue and receipt of firearms’ and states that firearms are only to be issued to people who:

·Are licensed in accordance with State/Federal legislation to carry a firearm.
·Are required to carry the firearm for a bona fide duty.
·Are in a fit and proper state to carry a firearm in accordance with State/Federal legislation and this procedure.
·Meet the training and qualifying standards required by State/Federal legislation and this procedure.

In respect of ammunition, part 5.7 states that ‘except in the case of training requirements only sufficient ammunition to fully load the firearm is to be issued with that firearm’. In cross-examination, Mr Hollis accepted that the defendant did not adhere to this aspect of the policy as the armed security guards were given extra ammunition.

Mr Hollis was also cross-examined in relation to the defendant’s policy on employee hours of work and how it managed staff fatigue. He gave evidence that the ‘recommendation’ was that staff worked a maximum of 12 hours per shift. Mr Hollis’ evidence was that if a worker was fatigued, there was a 24 hour call centre available to the worker and the defendant would then arrange cover for the shift.

In relation to those aspects of the defendant’s policies which were not followed, Mr Hollis accepted a proposition put to him in cross-examination that this sent a message to staff to the effect of ‘[d]on’t worry about what our policy is. Don’t worry about what our standard operating procedures is. We don’t care about them so neither should you’.

Notwithstanding his acceptance of that proposition, Mr Hollis said that he took gun safety extremely seriously and that the defendant ‘tried to build a really strong culture’ of gun safety. Mr Hollis said that safety was his concern and he believed that his staff were fully aware of what the requirements were in respect of gun safety.

Mr Hollis gave evidence that it was ‘pretty standard’ for him to have conversations with his staff, both prospective and existing employees, the substance of which was:

The simple fact of the matter is you're carrying around a lethal weapon. It’s not something that is just … a tool that is strapped to your belt. You have live rounds, you have ammunition in your gun. You may be required at times to use that firearm in self-defence or defence of another person … and that is seriously. There was no grey area about hooligans or yahoos…

As part of these conversations, Mr Hollis gave evidence that he would also say:

To be professional, never withdraw your firearm out unless you have to. Um, we spoke about, um, the justifications for the use of a firearm. We then went through the process of them coming into the office, being issued a firearm, signing the firearms registry, making sure they had their licensees [sic] on them at all times.

Mr Hollis gave evidence that there was signage about safe gun handling procedures on the defendant’s walls on both sides of the gun safe.

Mr Hollis said that the defendant employed Mr Thrower approximately six months prior to the gun incident. His evidence was that, initially, Mr Thrower commenced employment with the defendant as a casual unarmed security guard. Mr Hollis did not interview Mr Thrower, but believed his interview would have been conducted in the standard manner that he had described. Further, he believed that as part of the defendant’s recruitment process, Mr Thrower’s referees ‘would’ve been called’.

Mr Hollis gave evidence that he had some contact with Mr Thrower whilst he worked as an unarmed security guard. He said that he saw Mr Thrower in the office on multiple occasions and considered Mr Thrower to be an enthusiastic employee. Mr Hollis recalled that Mr Thrower had a young family, was ‘super keen’, and wanted to make security his profession. Mr Hollis said that he did not have any concerns or cause to question Mr Thrower’s character at any time prior to the gun incident.

Further, Mr Hollis’ evidence was that he did not receive any adverse comments from any of his clients regarding Mr Thrower prior to the gun incident. He said that as the business relied upon sub-contracting security staff to its clients, the defendant’s employees were heavily scrutinised and if there was an issue with any staff member he was confident that he would have heard about it. If a problem was raised in respect of a staff member, Mr Hollis said that the employee would be subject to a disciplinary hearing and, if necessary, action would be taken by either issuing a warning (a verbal warning or a first and final written warning), or standing them down immediately. Mr Hollis said that he had not given any warnings to Mr Thrower prior to the gun incident.

At some time during Mr Thrower’s employment with the defendant, Mr Hollis recalled that he had a conversation with Mr Thrower about him progressing to obtain a gun licence. Mr Hollis gave evidence that he considered Mr Thrower to be conscientious and considered ‘his professionalism [to be] unquestioned’. Mr Hollis said that as Mr Thrower was showing ‘all the right attributes to be in the business and to handle the firearm’, the company supported his application to obtain this certification by providing a letter to LRD. Mr Hollis said that after Mr Thrower completed the necessary training and obtained his gun licence, he was subsequently employed by the defendant as an armed security guard.

Mr Hollis’ evidence was that, in 2014, he qualified as a firearms instructor and was therefore familiar with the training course which students were required to successfully complete before being authorised to work as an armed security guard. Mr Hollis said that the course had a heavy emphasis on safety and that students were required to pass the written exam with a perfect score as well as undertaking practical assessment in their competency and safe handling of firearms.

Once Mr Thrower had qualified to work as an armed guard, Mr Hollis said that he believed Mr Thrower would have been provided with a copy of the firearm policy in accordance with the defendant’s ‘standard process’.

Mr Hollis said that he was ‘shocked’ when he was advised of the gun incident. His evidence was that it did not fit with his impression of Mr Thrower. Further, Mr Hollis’ evidence was that in all of his years in the security industry, he had ‘never had anything like this happen before’.

Mr Hollis said that Mr Thrower was immediately stood down following the gun incident, and his employment was subsequently terminated.

Dr Zalewski’s evidence

Mr Garrett’s solicitors obtained an expert opinion from safety and risk consultant, Dr Tony Zalewski, who was called to give evidence at trial. Dr Zalewski’s opinion, contained within his report dated 18 September 2021, was based upon an interview he conducted with Mr Garrett on 15 September 2021 and his consideration of numerous documents provided to him, including student training resource material from the Complex Training Academy.

Dr Zalewski explained that to work as an armed guard, it is necessary to complete a Certificate III in Security Operations, with a training component in firearms use (‘the course’). Dr Zalewski’s evidence was that the syllabus of the course is set by the state regulator, which is part of Victoria Police. In respect of the resource material contained in the Complex Training Academy training documents, Dr Zalewski stated this was reflective of what was taught by other training organisations, as the state regulator endorses the content of each course. Further, the material for the course was embossed with the words ’Security Trainers Association’, which Dr Zalewski explained is a national organisation of key stakeholders who review and adjust course resources.

Dr Zalewski said that the course included the following content in respect of safe handling of firearms:

·[A]ctions of a guard should not place himself or a fellow employee in danger;
…
·A ‘duty of care’ is owed not to injure a person by any intentional or reckless act on his/her part;
·Justification for the use of a firearm must be based upon a ‘real and impending threat to life’ … and a firearm should only be drawn ‘where there is a real and impending threat to life and no other options are available’ … and ‘where the lives of innocent persons will not be placed in danger’… Further, if ‘there is any concern or doubt in the mind of the Security Guard as to whether the Security Guard is justified in withdrawing the firearm in a particular situation, the Security Guard should not withdraw the firearm from the holster’.
·Factors to be taken into account in withdrawing the firearm from its holster include ‘tactical withdrawal options’ and ‘use of a firearm is last resort’.
·When on duty, the firearm must remain in the holster at all times other than in ‘reasonable self defence’ or ‘a designated safe area when unloading’ or during practice/training on a police approved firearms range.
…
·Never point a firearm at or near another person.

Dr Zalewski gave evidence that to pass the course candidates must demonstrate competency in 14 units, which covers both theoretical and practical knowledge. Further, to obtain the necessary qualification to work as an armed security guard, Dr Zalewski said that candidates must also complete a two-day firearms elective unit as part of the course. Dr Zalewski said that this unit was authorised and managed by LRD, and that to be successful, a candidate must achieve a perfect examination score. Dr Zalewski also stated that the examination requires an articulation of s 462A of the Crimes Act1958 (Vic), which provides as follows:

A person may use such force not disproportionate to the objective as he believes on reasonable grounds to be necessary to prevent the commission, continuance or completion of an indictable offence or to effect or assist in effecting the lawful arrest of a person committing or suspected of committing any offence.

Dr Zalewski was of the opinion that, separate to such training, it was ‘common sense’ not to draw or point a gun at, or in the direction of, another person unless there was ‘a real and impending threat to life and no other options are available.’

Notwithstanding the compulsory pre-employment formal training and presumption of common sense in respect of gun safety, Dr Zalewski was of the opinion that the defendant should have offered informal training and instruction for its particular workplace, which was ‘more aligned to on-the-job activity’.

Further, Dr Zalewski considered that a risk assessment was required to look at the relevant elements of the workplace, including the environment, the work design, the physical protections that might be in place for workers, the competency of those workers and the guidelines that drive them. In respect of the defendant, such a contextualised risk assessment would have addressed the end to end work process, from the time of collection of the weapon, until its return at the end of the shift. Dr Zalewski opined that this was required to minimise the risk of injury in the workplace.

Dr Zalewski was critical of the defendant’s firearms policy in that it failed to include provision or protocols regarding the drawing of a holstered firearm, including a direction not to point a firearm at another person unless justified. In the absence of such policy guidance, Dr Zalewski opined that staff were able to exercise discretion in areas that should be strictly controlled. Dr Zalweski’s opinion was that the firearms policy ought to have removed the capacity for individuals to exercise discretion in respect of their firearm usage, such as by stating that firearms must remain holstered at all times. As he deemed the defendant’s operations in respect of the handling of guns to constitute a high-risk area of work, Dr Zalewski opined that it was reasonable to expect such inclusions in the firearms policy.

Dr Zalewski stated that clear written instructions ‘are an important element within any system of security and safety to minimise the exercise of discretion by staff in how to perform their relevant routine functions’. Dr Zalewski went on to state that ‘the better the system design which includes minimising the exercise of discretion means consistency across the system, less risk and therefore less incidents and resultant injuries’.

Notwithstanding that an employee has undergone training, demonstrated competency, and been certified, Dr Zalewski observed that ‘people will still make mistakes’. He opined that to minimise the risk of injury ‘the next level up’ from an employee’s training is the ‘day-to-day reinforcement in an organisation [of] the safety culture’.

Dr Zalewski was then asked the following question:

Counsel: If [Mr] Thrower had been through the training that we expect he had, he would have been under no misapprehension that he was permitted to wield a weapon, wield the gun, and I suggest that any further training would’ve likely not got into his thick skull and he would’ve still conducted [himself] in a similar manner?

Dr Zalewski: Well, I don’t know. I can’t comment on that.

In relation to the suitability of prospective employees, Dr Zalewski opined that for high-risk activities such as armed guard work, careful and thorough background screening is required, beyond the police probity check. Dr Zalewski stated that it should be more ‘in depth’ so as to reveal matters such as drug and alcohol use, credit and financial history, and driving record. However, Dr Zalewski did not elaborate as to how this might be reliably obtained.

In respect of the photograph of Mr Thrower on his Instagram account holding a gun, Dr Zalewski was of the opinion that it evinced poor judgement on Mr Thrower’s part.

Mr Garrett’s claim in negligence and vicarious liability

The particulars of negligence relied upon by Mr Garrett included:

(i) failing to carry out the necessary investigations or background checks of Mr Thrower before he was employed as an armed guard to ensure he was a fit and proper person to be so employed;

(ii) failing to instruct, train or induct Mr Thrower in relation to the inappropriate use of firearms; and

(iii) permitting Mr Thrower to work on the day of the gun incident when it knew or should have known that he was fatigued and potentially vulnerable to being stressed and behaving inappropriately.

Mr Garrett submitted that, by its very nature, employment as an armed guard requires carrying a loaded weapon for the purpose of conveying a real or implied threat of deadly force. It was said to be axiomatic that in this context, every aspect of recruitment, training, induction, supervision, policy, and culture must be fit for the very significant risk involved in such work. It was submitted that the defendant failed to address such matters, which was a cause of the gun incident.

Mr Garrett submitted that there was no satisfactory evidence that the defendant’s policy documents, which were said to focus on gun safety, were provided to its employees. It was put that the thrust of Mr Garrett’s evidence was that he did not receive such documents, notwithstanding his sometimes inconsistent evidence and concession in cross-examination that he may not have remembered receiving the documents. It was put that even if those documents were provided, parts of the policies were not followed by the defendant. In support of this contention Mr Garrett relied upon Mr Hollis’ concession that disregarding its own company policy sent a message to the defendant’s staff that the defendant did not care about such policies, and so neither should its staff.

Further, Mr Garrett emphasised that neither the defendant’s operating manual nor its firearms policy included a clear instruction that any breach of firearms safety would result in instant dismissal.

Mr Garrett submitted that the defendant relied virtually entirely on the training that its employees had received prior to commencing employment, and this was said to be inadequate given its employees were working with loaded guns.

Finally, Mr Garrett submitted that the defendant did not follow its own policy in relation to the management of fatigue, and it contended that there was evidence that both Mr Garrett and Mr Thrower were significantly fatigued at the time of the gun incident. It was alleged that this fatigue gave rise to an increased risk of interpersonal friction and poor judgement.

Mr Garrett submitted that the defendant’s failure in relation to the aforementioned matters demonstrated that it was negligent. He submitted that it could be inferred that proper training and instruction provided to the defendant’s employees would have, in all likelihood, encouraged better behaviour and consequently discouraged Mr Thrower from taking the course he did.

Mr Garrett relied upon the evidence of Dr Zalewski, who he said gave cogent and considered evidence in support of the proposition that proper processes, risk assessments, and a culture of safety eliminates or reduces the risk of injury.

In relation to the screening of new employees, it was put that given the defendant was hiring staff to work as armed guards, it was appropriate for it to conduct rigorous screening as to their suitability. It was emphasised that although Mr Hollis accepted such screening was important, he conceded it was possible that the references provided to the defendant could be provided by family, friends or Instagram followers of the job applicant.

Mr Garrett relied on the screenshot of Mr Thrower’s Instagram post, and submitted that it constituted evidence that he was not a person to be entrusted with a firearm. Although Mr Garrett did not persist with his pleaded claim that the defendant ought to have monitored Mr Thrower’s social media accounts to determine his (un)suitability to work as an armed guard, he submitted that it was evident from the ‘entire tenor’ of Mr Thrower’s Instagram post (including the usernames of some of his followers), that he was ‘prima facie unsuited as a person to be entrusted with a loaded weapon’. Mr Garrett submitted that it could be inferred that a rigorous screening process undertaken by the defendant would have established Mr Thrower’s unsuitability.

In summary, it was said that proper screening, training, and instruction would likely have either prevented the employment of Mr Thrower, or reinforced in him the need to behave appropriately with a firearm.

In addition to negligence, Mr Garrett also claimed that the defendant was vicariously liable for the acts of Mr Thrower. Whilst it was conceded that the gun incident was an unauthorised and unlawful act, Mr Garrett contended that the defendant was vicariously liable as the gun incident occurred in the course of Mr Thrower’s employment with the defendant. It was specifically contended that such liability arose out of the following matters:

(a) the defendant authorised Mr Thrower to carry a loaded firearm, with instruction that it was to be used in certain circumstances;

(b) the defendant required Mr Garrett and Mr Thrower to attend the premises and wait for the cylinders to be serviced; and

(c) the defendant placed Mr Thrower and Mr Garrett in close physical proximity to each other over a long shift, which invited boredom, fatigue and the potential for interpersonal friction.

Mr Garrett submitted that Mr Thrower’s employment did ‘significantly more’ than provide the temporal opportunity for the assault. It was submitted that the provision of a loaded weapon was central to his employment, as well as to the circumstances of the assault. It was noted that Mr Hollis accepted that, as an armed security guard, Mr Thrower was authorised to use the firearm as a deterrent, or by firing it to wound or kill. Although the gun incident was not authorised, Mr Garrett submitted that it could properly be characterised as an unauthorised mode of performing an authorised act. Further, he submitted that ‘the circumstances were so intertwined with the extraordinary features of the employment, as to invite vicarious liability.’

In addition, Mr Garrett submitted that the reference to the director’s responsibilities contained in part 4 of the defendant’s firearms policy (set out at [39] above) supports and invites the imposition of vicarious liability arising from Mr Thrower’s use of the defendant’s firearm.

Mr Garrett contended that the scope of vicarious liability is developing in Australia, particularly in the area of sexual abuse of minors, and referred me to the cases of Prince Alfred College Incorporated v ADC (‘Prince Alfred College’)[5] and DP v Bird (‘DP’).[6] I was taken to several other judgments, from both Australia and the UK, in which employers were held vicariously liable for unauthorised and illegal acts. Mr Garrett relied on these cases to support his submission that the defendant should be found vicariously liable for Mr Thrower’s acts. Such cases are discussed below.
[5](2016) 258 CLR 134 (‘Prince Alfred College’).
[6][2021] VSC 850 (‘DP’).

Mr Garrett sought to distinguish his case from a previous and, on the face of it, seemingly similar case of Blake v J R Perry Nominees Pty Ltd (‘Blake’).[7] In that case (which is also discussed in more detail below), J Forrest J (as his Honour was then) held at first instance that the employer was not vicariously liable for the unlawful assault of the plaintiff by a co-worker. Although an appeal was dismissed,[8] Mr Garrett emphasised that as the Court of Appeal was split (Neave JA dissenting), it was a ‘borderline case’ in its application of principles to the relevant facts. Further, he submitted that the decision in Blake pre-dated the judgment of Prince Alfred College.
[7][2010] VSC 272 (‘Blake at first instance’).
[8]Blake v JR Perry Nominees Pty Ltd (2012) 38 VR 123 (‘Blake on appeal’).

The defence of Mr Garrett’s claim

The defendant accepted that it owed a non-delegable duty of care to Mr Garrett to take reasonable care to prescribe, implement, and maintain a safe workplace and system of work. Whilst the defendant accepted that the duty owed is limited to foreseeable risks of injury, it was put that Mr Garrett’s claim should be confined to the specific risk of Mr Thrower’s conduct. That is, the foreseeable risk was the illegal threatening use of a firearm by a worker towards a fellow worker.

The defendant urged me to reject Mr Garrett’s submission that there was inadequate training or focus on gun safety in its workplace. It was contended that Mr Hollis gave evidence in a straightforward and honest manner. Notwithstanding his frank concession that not all parts of the defendant’s written policies were followed, I was urged to find the tenor of Mr Hollis’ evidence to be that he took gun safety very seriously. In support, the defendant submitted that Mr Garrett, as the only worker called, gave evidence that Mr Hollis took a no nonsense approach to gun safety.

Further, it was said that even if I accepted that there was no additional training and an inadequate culture of gun safety, on the evidence available I could not be satisfied that any such inadequacies were a cause of the gun incident. The extensive training Mr Thrower received in obtaining his qualifications should, on the defendant’s view, leave the Court in no doubt that when working as an armed guard he knew he was not to point his loaded gun at a co-worker. The defendant submitted that it ‘defie[d] logic’ to suggest that Mr Thrower’s behaviour would have been moderated upon being told ‘once again of this most basic of rules’.

In relation to the allegation that the defendant was negligent for inadequate screening of Mr Thrower prior to hiring him as an armed guard, it was noted that, in addition to the defendant being satisfied Mr Thrower had completed his training and undergone the necessary police checks to obtain his firearms licence, the defendant:

(a) conducted an interview and satisfied itself that he met the ‘three Ps’;

(b) undertook three reference checks, with it being entirely speculative as to whether the references were family, friends or Instagram followers;

(c) had not received any adverse reports in relation to Mr Thrower’s work as an unarmed security guard; and

(d) observed Mr Thrower to be an enthusiastic, conscientious and professional employee.

The defendant submitted that these matters combined to constitute reasonable screening of Mr Thrower and there was no cause for concern prior to the gun incident that Mr Thrower was not a suitable person to work as an armed guard.

The defendant denied that it was vicariously liable for the gun incident. It acknowledged that an employer may be vicariously liable for the acts of an employee if there is a nexus between the tortious conduct and the furtherance of the interests of the employer.[9] It was noted that this can extend to instances where an employee undertakes an authorised act in an unauthorised manner, or where the conduct is deemed so connected with the course of employment that it represents same, despite not being done in the ostensible pursuit of the employer’s business. In respect of cases where schools and religious institutions have been held vicariously liable for sexual abuse, the defendant noted that the illegal acts of employees were said to have a nexus with the employment relationship by reason of the ‘special role that the employer has assigned to the employee’ and the ‘position in which the employee is thereby placed vis-à-vis the victim’.[10]
[9]Hayward v Georges Ltd [1966] VR 202; Bayley v Manchester, Sheffield and Lincolnshire Railway Company (1873) LR 8 CP 148; Poland v John Parr and Sons [1927] 1 KB 236.
[10]Prince Alfred College (n 5), 159 [80]; PCB v Geelong College [2021] VSC 633, [302].

However, the defendant contended that the law was clear that an employer shall not be held vicariously liable for the harm caused by an employee when on a ‘frolic of their own’. In support of this, the defendant referred me to the High Court case of Deatons Pty Ltd v Flew (‘Deatons’),[11] in which it was held that the employer of a barmaid who threw the contents of a beer glass, followed by the glass, at a disruptive patron was not vicariously liable. Dixon J said as follows:

It is not a case of a negligent or improper act, due to error or ill judgment, but done in the supposed furtherance of the master's interests. Nor is it one of those wrongful acts done for the servant's own benefit for which the master is liable when they are acts to which the ostensible performance of his master’s work gives occasion or which are committed under cover of the authority the servant is held out as possessing or of the position in which he is placed as a representative of his master.
The truth is that it was an act of passion and resentment done neither in furtherance of the master’s interests nor under his express or implied authority nor as an incident to or in consequence of anything the barmaid was employed to do. It was a spontaneous act of retributive justice. The occasion for administering it and the form it took may have arisen from the fact that she was a barmaid but retribution was not within the course of her employment as a barmaid.[12]

[11](1949) 79 CLR 370.

[12]Ibid, 381-2 (citations omitted).

Further, the defendant relied upon the judgments of J Forrest J and the Court of Appeal in Blake,[13] discussed below.
[13]Blake at first instance (n 7); Blake on appeal (n 8).

The defendant submitted that given the principles contained in those authorities, there was no basis to establish vicarious liability. It was expressly stated that:

(a) Mr Thrower was not acting within the scope of his employment when he drew his gun;

(b) Mr Thrower’s actions were not in the furtherance of his employment or his employer’s interests;

(c) Mr Thrower committed an illegal and unauthorised act; and

(d) Mr Thrower was not assigned any special role or position of dominance over the plaintiff.

In respect of Mr Garrett’s allegation that Mr Thrower’s actions were as a result of delay, boredom, or lack of sleep, the defendant submitted there was no evidence to support such a conclusion. Further, in the absence of any evidence from Mr Thrower as to why he drew the gun, the defendant said the only conclusion open to the Court is that Mr Thrower’s actions were a ‘frolic of his own’ and ‘a random act of violence’.

Findings of fact relevant to liability

I considered much of Mr Garrett’s evidence relevant to the defendant’s recruitment, induction, and safety culture, to be consistent with Mr Hollis’ account of what its standard procedures were. In view of this, I am satisfied of the following matters:

·the recruitment involved an interview and reference checks;
·the induction was short but involved clear messaging in respect of gun safety; and
·the defendant’s culture was such that it conveyed that it was a professional security company, which did not tolerate hooligan behaviour.

Whilst I regarded Mr Garrett generally to be a satisfactory witness, there were aspects of his evidence in respect of liability that I considered unreliable. His poor memory and, at times inconsistent answers, may be due to the passage of time, his psychiatric injury, and possibly his disdain for the justice system, which he expressed on a number of occasions during the trial.[14] Whatever the cause, I considered Mr Garrett’s evidence in relation to first, whether or not he received the defendant’s operating manual and firearms policy, and second, the contents of the email Kylie sent to the police officer investigating the gun incident, to be both equivocal and confusing. For similar reasons, I considered his explicit denial in re-examination that the defendant had safe gun handling posters on its walls, to be unreliable.
[14]Mr Garrett said on numerous occasions that through his involvement in Family Court proceedings, as well as court proceedings involving intervention orders (including a period of detention at the Melbourne Assessment Centre) he lost confidence in the justice system, which he felt was always against him. I considered such matters only relevant to his potential damages claim and as I did not come to assess damages, these are not detailed in the judgment.

I considered Mr Hollis a genuine and cooperative witness who gave evidence in a straightforward manner. He acknowledged that he could not recall some of the matters relevant to this claim, which was understandable given such events occurred over eight years ago. Notwithstanding the concessions Mr Hollis made in cross-examination in respect of the defendant’s failure to follow aspects of its written policies (and the message this sent to staff), he impressed me as a person who had considerable experience in the security industry, was highly professional, and was a clear communicator who treated gun safety seriously.

Having considered the oral evidence of Mr Garrett and Mr Hollis, as well as the tendered documents, I am satisfied of the following matters relevant to the determination of liability in this matter:

(a) Mr Garrett and Mr Thrower were both armed security guards, employed by the defendant.

(b) In accordance with its standard recruitment process, the defendant checked referees before employing new staff. It is probable this was done when Mr Thrower first commenced employment with the defendant as an unarmed security guard.

(c) Although reference checks were part of its recruitment process, I am satisfied that the defendant predominantly relied on LRD to confirm prospective employees were suitable to work as armed security guards. However, in the case of Mr Thrower, the defendant also had the opportunity to assess his suitability in the time he worked as an unarmed security guard. During that period, the defendant received no complaints and there were no concerns as to Mr Thrower’s character or professionalism.

(d) The defendant’s induction process took 30 to 60 minutes, and as part of that induction, armed guards were spoken to about the importance of firearm safety.

(e) It was the defendant’s standard process to provide all new staff with its operating manual, and to provide armed guards with its firearms policy. I therefore consider it probable that both Mr Garrett and Mr Thrower were provided such documents.

(f) It is probable that there were signs/posters about safe handling of guns on the walls either side of the defendant’s gun safe.

(g) Save for Mr Garrett having worked approximately 12 hours the day before, having woken at 3.45am on the day of the gun incident, and Mr Garrett’s evidence that Mr Thrower slept for part of the car journey on the morning of the gun incident, there was no other evidence that either worker was fatigued to the extent that this could be inferred as a factor relevant to the gun incident.

(h) There is no evidence that Mr Thrower was bored at the time of the gun incident.

(i) The gun incident was a criminal act committed by Mr Thrower[15] and one which was not authorised by the defendant.

(j) Mr Thrower did not give evidence in this proceeding. Given he was terminated by the defendant for the gun incident, and subsequently charged and convicted, I do not consider Mr Thrower was in either party’s ‘camp’. Therefore, an adverse inference should not be drawn against either party for the failure to call Mr Thrower as a witness. In the absence of Mr Thrower giving evidence, it is unknown why he behaved as he did.

[15]No oral evidence was given on this, however the defendant tendered an email from the Magistrates’ Court dated 12 July 2022 which stated that on 22 January 2015, Mr Thrower pleaded guilty to five charges of unlawful assault. The parties agreed this related to the gun incident.

Analysis of the claim
Negligence

An employer has a non-delegable duty to establish, maintain, and enforce a safe system of work so as to avoid exposing its employees to unnecessary risk of injury.[16] In doing so, an employer is only required to safeguard against risks which are reasonably foreseeable, not risks which are far-fetched or fanciful.[17]
[16]Mclean v Tedman (1984) 155 CLR 306, 312 (‘Mclean v Tedham’); Czatyrko v Edith Cowan University (2005) 214 ALR 349, 353 [12] (‘Czatyrko v Edith Cowan’).
[17]Wyong Shire Council v Shirt (1980) 146 CLR 40; Koehler v Cerebos, [33] 47.

The High Court in McLean v Tedman stated that the standard of care expected of a reasonable employer requires the employer to take account of the possibility of inadvertent or negligent conduct on the part of others.[18] In Czatyrko v Edith Cowan University it was stated that, in addition, an employer must also take into account the possibility of thoughtlessness and carelessness.[19]
[18]McLean v Tedham (n 16), 311.
[19]Czatyrko v Edith Cowan (n 16), 353 [12].

To determine if an employer has breached its duty of care, it is necessary to identify the relevant risk of injury against which the employer was alleged to have failed to take adequate steps to protect its employee from.[20] Once that risk is correctly identified, an assessment must be made as to what the employer should have done in response to that risk.[21] In performing this task, the precise circumstances in which the injury was sustained need not have been reasonably foreseen, rather it is sufficient that the nature of the circumstances in which the harm was incurred was reasonably foreseeable.[22]
[20]Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 301, [53] (‘Southern Colour’).
[21]Ibid [53] citing Vairy v Wyong Shire Council (2005) 223 CLR 422, 461-465; Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330, 351.
[22]Southern Colour (n 20), [54]; Chapman v Hearse (1961) 106 CLR 112, 120-121; Erickson v Bagley [2015] VSCA 220, [33].

In this case, the nature of the circumstances and relevant risk of injury was an armed security guard pointing a loaded gun at a co-worker, unlawfully and without justification. In determining if such a risk was reasonably foreseeable, I consider it relevant that the armed security guards are required to successfully undertake pre-license training before being authorised to work in such employment. According to Dr Zalewski, the compulsory training (which required a 100 per cent pass rate as noted above) focused heavily on gun safety and instilled the following principles:
a) Safety overrides all other considerations in the performance of work… [including] safe handling of firearms where possible;
b)Armed security guards must not withdraw a weapon from a holster except where there is a real and impending threat to life and no other options are available;
c) Other than where there is a real and impending threat to life, the firearm should never be pointed at another person; and
d) Use of ‘common sense’ must be exercised at all times.
Further, such employees are required to be licensed through LRD, a statutory body which checks and verifies a prospective licensee’s suitability to carry a gun.

As opined by Dr Zalewski, it is a matter of common sense that a security guard should only draw their gun from their holster if there is a real and impending threat to life, and it should not be pointed at a person unless such circumstances arise.

Given the specific training armed guards must successfully complete, together with a compulsory qualification verified by a statutory authority, and an expectation of common sense, I do not consider it reasonably foreseeable that an armed security guard would point a loaded gun at a co-worker without justification. I consider it was reasonable for the defendant to expect that its trained and certified armed security guards would follow the basic, yet fundamental principles outlined above, and not act in the manner that Mr Thrower did.

Further, I do not consider such conduct can be categorised as thoughtless, careless, or inadvertent, of which the defendant ought to have foreseen.

For those reasons, I am not satisfied that this was a foreseeable risk, which the defendant was required to take measures to protect against.

However, even if an armed security guard pointing a loaded gun at a co-worker’s head, without justification, was a foreseeable risk, and the defendant was required to take measures to safeguard against it, for the reasons that follow, I am not satisfied that any additional action taken by the defendant would have avoided the gun incident.

I am satisfied that the defendant had a culture of gun safety. This culture was conveyed to its employees from the time they commenced working as armed security guards through the provision of the operations manual and firearms policy, its induction process, as well as in subsequent conversations with Mr Hollis. In addition, there was a gun safe and designated area to safely load and unload weapons. Although Mr Hollis accepted the proposition that the defendant’s lack of compliance with the precise terms of its policies sent a message that the defendant did not care about gun safety, I am satisfied his clear messaging to the defendant’s employees (as previously referred to) was to the contrary. Mr Garrett readily acknowledged that the importance of gun safety was impressed upon him by Mr Hollis. I am satisfied that the same message would have been conveyed to Mr Thrower.

Consequently, in cases of this kind, the relevant approach is to consider any special role that the employer has assigned to employee and the position in which the employee is thereby placed vis-à-vis the victim. In determining whether the apparent performance of such a role may be said to give the ‘occasion’ for the wrongful act, particular features may be taken into account. They include authority, power, trust, control and the ability to achieve intimacy with the victim. The latter feature may be especially important. Where, in such circumstances, the employee takes advantage of his or her position with respect to the victim, that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable.[56]

[56]Ibid, 159-160 [80]-[81] (citations omitted).

In Prince Alfred College, the majority considered the decisions of Lister and Mohamud and noted the differing approaches adopted in the United Kingdom in respect of vicarious liability. In relation to Mohamud, the majority noted the explanation given for liability being imposed on the employer was that, as the employer had entrusted the employee with the position of serving customers, it was ‘just’ that the employer be held responsible for the employee’s abuse of it. The majority accepted the temporal and causal connection to employment, however considered that it did not explain why it was ‘fair and just’ to impose liability for the assaults. The majority stated that ‘[i]t does not explain how the actions could or should be said to be in the course or scope of the employment’.[57]
[57]Ibid, 157 [72].

The majority explained why the approach taken in Mohamud should not be followed in Australia:

Mohamud is not a case of this kind. However, it is apparent that the role assigned to the employee in that case did not provide the occasion for the wrongful acts which the employee committed outside the kiosk on the forecourt of the petrol station. What occurred after the victim left the kiosk was relevantly unconnected with the employee’s employment. The approach of focusing on any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim, is also designedly different from the approach in Mohamud. This is because such a test of vicarious liability, requiring no more than sufficiency of connection – unconstrained by the outer limits of the course or scope of employment – is likely to result in the imposition of vicarious liability for wrongful acts for which employment provides no more than an opportunity.[58]

[58]Ibid, 160 [83] (citations omitted).

In DP v Bird (‘DP’),[59] the plaintiff ‘DP’ alleged that he had been sexually assaulted as a child by an assistant priest of his local parish, Father Coffey. DP sought damages from the Diocese on the basis that it was vicariously liable for the actions of Coffey. The defendant denied such liability, first, as it was not the employer of Coffey in the strict legal sense, and second, on the basis that it ought not be liable for the unlawful acts he committed against DP, which were wholly outside his clerical duties. In determining these two issues, J Forrest J summarised a multitude of vicarious liability cases, including some of those referred to above. As there is a clear employment relationship between Mr Thrower and the defendant, it is not necessary to canvass those aspects of DP which deal with why the relationship between Coffey and the Diocese was deemed sufficient to give rise to vicarious liability on the part of the Diocese for Coffey’s conduct. Having so determined the first issue in favour of DP, J Forrest J then applied the ‘relevant approach’ test from Prince Alfred College to the facts as he found them to be.
[59][2021] VSC 850, I note this case is currently on appeal.

In applying the relevant approach test, it was noted that Coffey’s role as an assistant priest under the direction of the Diocese placed him in a position of power and intimacy with respect to DP, and that enabled him to take advantage of DP when they were alone. Further, it was stated that Coffey’s position ‘significantly increased the risk of harm’ to DP,[60] and enabled him to misuse and take advantage of his position as a confidant and pastor to DP’s family.
[60]Ibid, [270].

Application of the case law to the to the facts as found

Having reviewed each of the aforementioned cases relevant to the determination of vicarious liability, I am mindful of the advisory remarks made in the two separate judgments in Prince AlfredCollege. The majority stated:

Since the search for a more acceptable general basis for liability has thus far eluded the common law of Australia, it is as well for the present to continue with the orthodox route of considering whether the approach taken in decided cases furnishes a solution to further cases as they arise. This has the advantage of consistency in what might, at some time in the future, develop into principle. And it has the advantage of being likely to identify factors which point toward liability and by that means provide explanation and guidance for future litigation.
Such a process commences with the identification of features of the employment role in decided cases which, although they may be dissimilar in many factual respects, explain why vicarious liability should or should not be imposed.[61]

[61]Prince Alfred College (n 5) 150 [46]-[47].

And as stated by Gagler and Gordon JJ:

The ‘relevant approach’ described in the other reasons is necessarily general. It does not and cannot prescribe an absolute rule. Applications of the approach must and will develop case by case. Some plaintiffs will win. Some plaintiffs will lose. The criteria that will mark those cases in which an employer is liable or where there is no liability must and will develop in accordance with ordinary common law methods. The Court cannot and does not mark out the exact boundaries of any principle of vicarious liability in this case.[62]

[62]Ibid, 172 [131].

Noting there are no exact boundaries, and drawing upon the jurisprudence referred to above, I have identified the following features relevant to the determination of vicarious liability in this case:

(iv) Mr Thrower was not placed in a position of authority, power, trust, control, or intimacy with Mr Garrett in a way that can be equated to that of a teacher or priest interacting with children, as in Prince Alfred College, Lister, and DP. In Prince Alfred College, the High Court noted that the ability to achieve intimacy may be ‘especially important’[63] in determining whether an employer should be rendered vicariously liable. The relationship between Mr Thrower and Mr Garrett cannot be categorised in this way.
[63]Ibid, 160 [81].

(v) There was no power imbalance between Mr Garrett and Mr Thrower, such that it could be said that Mr Thrower was able to take advantage of his position over Mr Garrett, in the way that was identified and discussed in Prince Alfred College.

(vi) The act of Mr Thrower removing his gun from his holster and pointing it at Mr Garrett was not done in furtherance of the interests of his employer or under the defendant’s express or implied authority, in the Zorom or Sprod sense.

(vii) Given my acceptance that gun safety was a key part of the defendant’s business and culture, it cannot be inferred that this type of conduct was of the sort which the defendant encouraged or expected, as in Mattis.

(viii) The evidence does not support Mr Garrett’s contention that the gun incident occurred as a consequence of Mr Thrower being bored and/or tired. To so hold would involve speculation. In any event, I note that on the day of the gun incident, only one currency cylinder was being serviced such that the wait time at Kirk’s was limited to 1 to 2 hours. Even if I was to accept Mr Garrett’s submissions on this, and infer that Mr Thrower was bored whilst waiting, to follow the reasoning of the majority in Blake, an illegal action taken by a bored employee is not a basis upon which to establish vicarious liability.

(ix) Finally, even if I was to apply the reasoning in the dissenting judgment of Neave JA in Blake, the circumstances of the gun incident are far removed from the circumstances in that case. I note that Neave JA considered it relevant that the workers in Blake had been onsite for 18 hours with no adequate place to sleep. Further, Neave JA accepted that the worker in Blake was laughing and clowning about at the time of the wrongful act. Her Honour concluded that the act committed by Mr Jones was not dissimilar to the physical activity and pranks played in the yard while the men were waiting, which were tolerated by the employer and therefore ‘sufficiently incidental’ to the performance of his duties. The circumstances in Blake are vastly different to those in the present case. The aforementioned factors which featured in Neave JA’s reasoning in holding the employer vicariously liable do not exist in this case to impose such liability.

(x) I consider Mr Thrower’s act of pulling a gun on his co-worker can only be categorised as an act of extreme and unnecessary violence, of the type similar to that in Deatons.

These matters, when considered collectively, are such that there is no sufficient basis for the defendant to be held vicariously liable for Mr Thrower’s unlawful act. The fact that the defendant provided the gun to Mr Thrower and authorised him to use it in certain circumstances may be described as ‘extraordinary features’ of employment but, in my view, for the reasons above, this is not enough to justify a finding of vicarious liability. The opportunity for the act, and the form it took, may have arisen from the fact that Mr Thrower was an armed guard employed by the defendant, but an act of this kind, generated wholly within the confines of Mr Thrower’s mind, was not within the course or scope of his employment. Physical violence towards a fellow employee was not a ‘natural extension’[64] of his duties, but rather, a gratuitous act unconnected with Mr Thrower’s employment.
[64]Blake at first instance (n 7), [86].

For the sake of completeness, I also reject Mr Garrett’s submission that the terms of the defendant’s firearms policy was a basis for the defendant to be held vicariously liable for Mr Thrower’s unlawful act. I was not taken to any authority to support such a contention.

Conclusion

For the reasons given, Mr Garrett’s claim against the defendant must fail in both negligence and vicarious liability.

I will hear the parties as to the precise form of orders sought to give effect to these reasons, and as to costs.

[2022] VSC 623

21 October 2022