Garrett v VWA

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0109

LANCE JAMES GARRETT	Applicant
v
VICTORIAN WORKCOVER AUTHORITY	Respondent

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JUDGES:	BEACH, T FORREST and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 June 2023
DATE OF JUDGMENT:	15 June 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 144
JUDGMENT APPEALED FROM:	[2022] VSC 623 (Justice Tsalamandris)

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TORTS – Personal injury – Negligence – Vicarious liability – Appeal from decision in Trial Division dismissing applicant’s claim for damages for psychological injury sustained in the course of employment as armed security guard – Co-security guard for no apparent reason pulled his loaded firearm out of its holster and pointed it directly at the applicant’s head – Applicant claimed psychiatric injuries suffered as a consequence – Whether judge erred by failing to find that the applicant’s employer was vicariously liable for the actions of the co-security guard – Whether judge erred in failing to conclude that the employment provided the ‘occasion’ and not merely the ‘opportunity’ for the commission of the wrongful act of the co-security guard – Appeal dismissed.

Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; Deatons Pty Ltd v Flew (1949) 79 CLR 370; Lister v Hesley Hall Ltd [2002] 1 AC 215; State of New South Wales v Lepore (2003) 212 CLR 511; Blake v JR Perry Nominees Pty Ltd [2012] VSCA 122; Bird v DP (a pseudonym) [2023] VSCA 66.

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Counsel
Applicant:		Mr J Brett KC with Mr A Dimsey
Respondent:		Ms M Britbart KC with Mr S Gladman
Solicitors
Applicant:	Stringer Clark Lawyers
Respondent:	IDP Lawyers

BEACH JA
T FORREST JA
KAYE JA:

The applicant seeks leave to appeal from the decision of a judge of the Trial Division, dismissing his claim for damages for psychological injury that he sustained in the course of his employment with Staff Factory Pty Ltd (‘Staff Factory’). Before the commencement of the proceeding, Staff Factory was deregistered. Accordingly, the applicant brought the proceeding for damages directly against the respondent, the insurer of Staff Factory, pursuant to s 601AG of the Corporations Act 2001 (Cth).
The applicant’s claim related to an incident involving a fellow employee Corey Thrower (‘Thrower’) and himself. At the time of the incident, the applicant and Thrower were employed by Staff Factory as armed security guards. On 28 June 2014, they were required to escort a truck, which was carrying a copper cylinder, from the Royal Australian Mint (‘the Mint’) to the factory of Kirk Group (‘Kirk’) in Mulgrave, for the purposes of having it serviced, and to escort the truck back to the Mint after the service was completed. While the applicant and Thrower were waiting in their motor vehicle outside the premises of Kirk, Thrower, for no apparent reason, pulled his loaded .38 Smith & Wesson firearm out of its holster and pointed it directly at the applicant’s head. The applicant claims that, as a consequence of the incident, he suffered psychiatric injuries, including Post Traumatic Stress Disorder and a Major Depressive Disorder.
In the proceeding, the applicant’s claim was made on two bases. The first basis was that Staff Factory breached its duty of care to him, by failing to carry out sufficient background checks and failing to screen Thrower for his suitability to work as an armed guard, for failing to adequately train and instruct Thrower in respect of appropriate firearm usage, and for failing to enforce its policies and procedures relating to gun safety. Secondly, or alternatively, the applicant claimed that Staff Factory was vicariously liable for the intentional acts of Thrower. In substance, it was contended that, in pointing the firearm at him, Thrower engaged in an unauthorised mode of performing an authorised act that was interwoven with, and connected to, the performance by him of his duties as an armed security guard.
After a trial that lasted some six days, the judge, in a reserved decision, held that she was not satisfied that Staff Factory had breached its duty of care to the applicant or that it was vicariously liable for the conduct of Thrower. Accordingly, her Honour dismissed the applicant’s claim for damages.[1]
[1]Garrett v Victorian WorkCover Authority [2022] VSC 623 (‘Reasons’).
The applicant does not seek to appeal against the judge’s conclusion that he had failed to establish that Staff Factory was directly liable to him in negligence. The applicant relies on two proposed grounds of appeal, which are directed to her Honour’s conclusion that he had failed to establish that Staff Factory (and thus VWA) was vicariously liable for the damage caused to him by the conduct of Thrower, namely:
1.The learned trial judge erred by failing to find that the Applicant’s employer was vicariously liable for the actions of Corey Thrower.
2.The learned trial judge erred in that her Honour failed to take into account the fact that the employment of Thrower provided the “occasion” and not merely the “opportunity” for the commission of Thrower’s wrongful act, in that the provision of a loaded gun to Thrower was central both to the nature of the actions of Thrower and to the nature of Thrower’s employment.
A significant part of the evidence at trial was directed to the claim by the applicant that Staff Factory had been negligent and in breach of its duty of care to him. Much of that evidence is not relevant to the issues raised on this application. As part of the submission by the applicant that Staff Factory was vicariously liable for the conduct of Thrower, counsel for the applicant has relied on the fact that Staff Factory had the sole responsibility for determining whether Thrower was suitable to be trusted with a loaded firearm. It is necessary to summarise, in brief form, some of the evidence relating to that aspect of the case, and, in particular, the basis upon which the applicant and Thrower had obtained their qualifications to work as armed security guards.

Summary of evidence

The applicant was born in 1983. Initially, he worked in various capacities in the Ballarat area. In 2009, he completed a Certificate II in Unarmed Guard and Crowd Control, and subsequently, he undertook some security work. In September 2013, the applicant completed a Certificate III in Security, with a specialty in Armed Guard and Cash in Transit. Following the completion of that course he obtained a firearms licence from Victoria Police, having completed training, provided by the Licensing and Regulation Division (‘LRD’) of the police.
In cross-examination, the applicant explained that, in order to obtain the Certificate III in Security, he undertook a 16 week program at the Complex Training Academy. He agreed that the course focused on gun safety. The training included an instruction that, in order to remove the gun from its holster, there must be a real and impending threat to life. He was also taught that, when discharging a firearm, he must take all reasonable precautions.
In addition, in order to obtain a firearms licence from the police, the applicant was required to undertake a two day training course, and to obtain a perfect score, in order to pass the gun licence examination.
The applicant commenced employment with Staff Factory one month before the incident in question. Having applied for the job, he was interviewed for approximately one hour by Staff Factory’s operations manager, Mr Robert Muddyman, and Staff Factory’s director, Mr Mark Hollis. He was asked about his employment history and his training in firearms. The applicant understood that, subsequent to the interview, Staff Factory had contacted the character references he had provided on his application form. About one week later, Mr Hollis contacted him and offered him the job, with the first shift commencing the following day.
Over the following month, the applicant was regularly offered shifts on a casual basis. The shifts involved him doing subcontract work for Wilson Security (‘Wilson’). At the start of each shift, he was required to collect a firearm from Staff Factory’s premises. That process involved him removing the firearm out of a cabinet, signing for it, and loading it, in a designated area of the premises. The firearm was loaded with six bullets, and he also carried two speed-loaders. The applicant would then drive his own vehicle to the premises of Wilson, where he would leave his vehicle, and collect a Wilson vehicle. He would then drive to the Mint, and, from there, escort a Mint vehicle, carrying currency cylinders to Kirk’s, where the cylinders were serviced. The length of each wait time at Kirk’s depended on how many cylinders were required to be serviced on a particular day. When the service was completed, the applicant and his co-worker would then escort the Mint vehicle back to the Mint. He would then drive back to Wilson, collect his vehicle, and then return to Staff Factory’s premises, in order to return the firearm.
In cross-examination, the applicant agreed that, when he commenced employment with Staff Factory, Mr Hollis had explained to him the requirements of the job. He agreed that Mr Hollis had told him, ‘in no uncertain terms’, that he did not condone ‘cowboy style behaviour’, and that he was a firm man, who would take no nonsense. The applicant also agreed that Mr Hollis provided further information to him concerning gun safety, and how Mr Hollis believed that that was integral to the company and to his employment. Mr Hollis instructed him that the firearm must stay in his holster until he returned to the Staff Factory premises, and it must be unloaded in the designated part of the premises.
The applicant said that, on the day before the incident, he had worked a twelve hour shift, which had finished at 7:00 pm. While he was driving home after the shift, one of the night managers contacted him, and asked him if he would work again the next morning, to which he agreed.
On the day of the incident, the applicant left home at 3:45 am, and commenced his shift at 5:00 am. He was allocated to work with Thrower. They were both issued with a .38 Smith & Wesson firearm, which was loaded. They then drove in the applicant’s vehicle from Staff Factory’s premises to Wilson’s, where they collected a Wilson vehicle, drove to the Mint, and escorted a Mint vehicle to Kirk’s. While they were en route, Thrower fell asleep. After they arrived at Kirk’s, the Mint truck was unloaded. The applicant and Thrower remained seated in the Wilson vehicle for one or two hours before the service of the copper roll was completed. During that time, Thrower was sitting to the left of the applicant.
The applicant said that, immediately before the incident occurred, Thrower was smoking a cigarette. The applicant turned around to find that Thrower had pulled his weapon out of his holster, and that Thrower was pointing it ‘right at [his] face’. The applicant said that he was then ‘looking directly down the barrel’. At that point, there had not been any ill-feeling between the two men. The applicant stayed still in the same position. Thrower continued to point the weapon at him for 10 to 15 seconds. During that time, the applicant felt ‘frozen … just worthless’, because he could not withdraw his own weapon. Thrower then put his firearm back in his holster. They left Kirk’s and drove back to the Mint. While he was driving back to the Mint, the applicant said to Thrower, ‘I don’t appreciate a loaded firearm pointed at me’. Otherwise there was no conversation for the remainder of the journey. After the shift ended, the applicant returned home. He reported the incident to Staff Factory’s night manager. On the following day, he reported it to police at Ballarat Police Station.
The applicant called evidence from Dr Tony Zalewski, a consultant in safety risk assessments and security issues. Dr Zalewski’s opinion was contained in a report, which was tendered in evidence, and he was cross-examined. In order to prepare his opinion, Dr Zalewski was provided with a number of documents, and he also conducted an interview with the applicant.
Dr Zalewski explained the legal requirements for a person to work as an armed guard. He confirmed that it was, first, necessary to complete a Certificate III in Security Operations, with a training component in firearms use. The syllabus of the course is set by the State Regulator, which is part of Victoria Police. That course includes content in respect of the safe handling of firearms, which includes instructions that: 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; the use of a firearm may only be justified upon a ‘real and impending threat to life’; 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’; and while on duty, the firearm must remain in the holster at all times, other than in ‘reasonable self-defence’ or in ‘a designated safe area when unloading’ or during training or practice. The instruction also included never to point a firearm at or near another person.
Dr Zalewski explained that, in order to pass the course, and gain a Certificate III, candidates must demonstrate competency in fourteen units. He also confirmed that, in order to gain the necessary qualification to work as an armed security guard, candidates must complete a two day firearms elective unit as part of the course. In order to be successful, a candidate must achieve a perfect examination score.
Dr Zalewski was critical of a number of aspects of the training and instruction provided by Staff Factory. He considered that Staff Factory should have offered informal training and instruction, which was more aligned to the particular work undertaken by it. Further, Staff Factory should have undertaken a risk assessment in respect of all relevant elements of the workplace and work performed by its employees. He was also critical of the firearms policy of Staff Factory, in that it failed to include a provision or protocols in respect of the drawing of a holstered firearm, including a specific direction not to point a firearm at another person unless justified. He considered that clear written instructions were an important element, in order to ensure a safe system, and to minimise the exercise of discretion by staff in how to perform their duties. Dr Zalewski was also critical of the ‘screening’ of employees by Staff Factory. Based on the process, explained to him by the applicant, he considered that that process was inadequate.
Mr Hollis gave evidence on behalf of the respondent. Mr Hollis was the director and the owner of Staff Factory from approximately March 2009 until March 2015. He had long experience in working in the security industry. He explained that, at the time, Staff Factory employed about 15 armed security guards.
Mr Hollis could not specifically recall hiring Thrower. However, he explained the standard process that Staff Factory undertook for the recruitment, hiring and induction of its staff. Initially, there would be a general conversation with an applicant, in order to establish some rapport. The applicant would then attend at the offices of Staff Factory, would complete an application form, and undergo an interview. The application form included information such as previous work experience and licences held by an applicant, together with a basic aptitude test. The form provided three spaces for referees, who could be either professional or personal. Staff Factory’s operations manager (Mr Muddyman) or its human resources manager (Tyler Henry) would then check the references. The referees did not have to be from any particular occupation. In cross-examination, Mr Hollis accepted it was possible they could include family, friends, or even Instagram followers.
Mr Hollis stated that it was the standard practice of Staff Factory to provide a copy of its operating manual to all staff upon commencement of their employment. The manual stated that the company’s induction training course was two days, and covered topics including procedures and conditions of employment. However, in cross-examination, he accepted that the induction in fact 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 also stated that it was the standard practice of Staff Factory to provide armed guards with a copy of its firearms policy at the commencement of their employment. Part 4 of the document, entitled ‘Responsibilities’, contained the policy, which noted that the ‘director’ was responsible for purchasing, safe handling, custody, licensing and control of all firearms, and that he was also responsible for ensuring that the provisions of that procedure were ‘strictly enforced’.
Mr Hollis stated that Thrower had commenced employment with Staff Factory as an unarmed security guard. Thrower had impressed him as being ‘super keen’, and he wanted to make security his profession. Thrower then undertook the necessary training to qualify him as an armed security guard. When asked what discussions took place with Thrower concerning safety, Mr Hollis said that to the best of his knowledge, a ‘standard’ conversation took place. It concerned being professional, never drawing the firearm unless necessary, and the justifications for the use of the firearm. Further, it was explained to Thrower how to be issued with a firearm, sign for the firearm at registry, and make sure that he had his licence on him at all times. Mr Hollis said that he took gun safety extremely seriously, and there was no margin for error. The advice that he would give to prospective handlers of firearms was that they were carrying a lethal weapon, which had live rounds in it, and that there was ‘no grey area about hooligans or yahoos’. Mr Hollis also gave evidence that there was signage, on the walls of the premises on both sides of the gun safe, about safe gun handling procedures. He said that he had not received any adverse comments from any of his clients concerning Thrower before the incident in this case.

The judge’s reasons

In her reasons, the judge summarised the evidence, relating to liability, in some detail. Her Honour regarded the applicant, overall, to be a satisfactory witness, although there were aspects of his evidence, which she considered to be unreliable, due to his poor memory and psychiatric injury. The judge considered Mr Hollis to be a genuine and cooperative witness.[2]
[2]Reasons, [97]–[98].
The judge then made the following findings of fact, which are relevant to the issue of liability:
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 Garretts’ [sic] 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[3] 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.[4]
[3]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.
[4]Reasons, [99].

The judge then addressed the question, whether the respondent was directly liable to the applicant in negligence. Her Honour did not consider it reasonably foreseeable that an armed security guard would point a loaded gun at a co-worker without justification, and that it was reasonable for Staff Factory to have expected that its trained and certified armed security guards would follow the basic principles outlined to them, and not act in the manner that Thrower did. Accordingly, her Honour was not satisfied that the conduct of Thrower was a foreseeable risk.[5] Further, her Honour was not satisfied that any additional action taken by Staff Factory would have avoided the occurrence of the incident.[6]
[5]Ibid [106]–[108].
[6]Ibid [109].
The judge was satisfied that Staff Factory had a ‘culture of gun safety’, which was conveyed to its employees from the time they commenced working as armed security guards, through both the provision of the operations manual and firearms policy, its induction process, and subsequent conversations with Mr Hollis. Accordingly, her Honour was satisfied there had been ‘clear messaging’ to Staff Factory’s employees as to the importance of gun safety.[7] The judge did not consider that Thrower’s action could be described as ‘a mistake’, capable of correction by training or protocols.[8] Her Honour also rejected the allegation that Staff Factory had failed to conduct an adequate screening process with respect to Thrower’s suitability to work as an armed guard.[9]
[7]Ibid [110].
[8]Ibid [114].
[9]Ibid [115].
For those reasons, the judge rejected the applicant’s claim that the respondent had been negligent, and in breach of its duty of care to him.
The judge then turned to the question whether the respondent was vicariously liable for the actions of Thrower. Her Honour gave detailed consideration of the relevant case law, commencing with the United Kingdom cases, Lister v Hesley Hall Ltd,[10] Mattis v Pollock,[11] and Mohamed v VM Morrison Supermarkets plc.[12] Her Honour then turned to the recent Australian decisions, namely: State of New South Wales v Lepore & Ors,[13] Sprod v Public Relations Orientated Security Pty Ltd,[14] Zorom Enterprises Pty Ltd (in liq) v Zabow,[15] Blake v JR Perry Nominees Pty Ltd,[16] Pioneer Mortgage Services Pty Ltd v Columbus Capital Pty Ltd,[17] the decision of J. Forrest J (at first instance) in DP (a pseudonym) v Bird,[18] and the decision of the High Court in Prince Alfred College Incorporated v ADC.18F[19] In reviewing those authorities, her Honour noted the ‘advisory remarks’, made in the judgments of the High Court in Prince Alfred College, that the Court could not ‘mark out’ the precise boundaries of any principle of vicarious liability in any case, and that the appropriate approach in any case is to continue the orthodox route of considering whether the approach taken, in decided cases, provides a solution for the case in hand.[20]
[10][2002] 1 AC 215 (Lords Steyn, Clyde, Hutton, Hobhouse and Millett) (‘Lister v Hesley Hall’).
[11][2003] EWCA Civ 887 (Judge, Dyson LJJ and Pumfrey J).
[12][2016] 2 WLR 821 (Lord Neuberger P, Lady Hale DP, Lord Dyson, Lord Reed and Lord Toulson SCJJ).
[13](2003) 212 CLR 511; [2003] HCA 4 (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ) (‘State of New South Wales v Lepore’).
[14][2007] NSWCA 319 (Ipp, Tobias JJA and Hislop J).
[15](2007) 71 NSWLR 354 (McColl, Basten and Campbell JJA).
[16](2012) 38 VR 123; [2012] VSCA 122 (Neave, Harper JJA and Robson AJA) (‘Blake’).
[17](2016) 250 FCR 136 (Davies, Gleeson and Edelman JJ).
[18][2021] VSC 850.
[19](2016) 258 CLR 134 (French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ) (‘Prince Alfred College’).
[20]Ibid 150 [46]–[47] (French CJ, Kiefel, Bell, Keane and Nettle JJ), 172 [131] (Gageler and Gordon JJ).
Based on those authorities, her Honour concluded that the applicant had failed to establish that the respondent was vicariously liable for the actions of Thrower in the following terms:
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:
(i)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’[21] in determining whether an employer should be rendered vicariously liable. The relationship between Mr Thrower and Mr Garrett cannot be categorised in this way.
(ii)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.
(iii)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.
(iv)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.
(v)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.
(vi)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.
(vii)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’[22] of his duties, but rather, a gratuitous act unconnected with Mr Thrower’s employment.[23]
[21]Ibid 160 [81].
[22]Blake (2012) 38 VR 123 at first instance (n 16), [86].
[23]Reasons, [147]–[148].

Submissions

Senior counsel for the applicant commenced by noting that in Prince Alfred College, the High Court had confirmed that the fact that a wrongful act, committed by an employee, might be a criminal offence, does not preclude a conclusion that the employer is vicariously liable in respect of that act. Counsel further noted that the various factors, relied on by the High Court in Prince Alfred College, for the imposition of vicarious liability in that case, should not be considered to be a comprehensive or exclusive list of the factors that must exist in each case.
In that respect, counsel submitted that, in the present case, there were five relevant factors, which were critical to the imposition of vicarious liability, and which the trial judge did not refer to, namely:
(1)the employer had provided Thrower with an extremely dangerous object, namely, a loaded gun, which he was expected to carry and use as and when necessary;
(2)the employer had the entire responsibility for determining whether Thrower was a suitable person to be entrusted with such a dangerous weapon;
(3)the employer had directed Thrower to accompany, and be in the presence of, the applicant while he was so armed with that weapon;
(4)the carriage, by Thrower, of a loaded weapon was essential both to the nature of Thrower’s employment, and also to the nature of the tortious act committed by him;
(5)the employer had expressly assumed responsibility for the safe handling of the gun.
Counsel placed particular emphasis on the fact that the employer had provided Thrower with the gun. The judge described Thrower’s act, of pointing the weapon at the applicant, as an act of ‘extreme and unnecessary violence’. However, the actual physical motion performed by Thrower was one of simply raising his hand and arm in the direction of the applicant. The circumstance, that rendered that act one of ‘extreme violence,’ was the fact that he was holding the loaded weapon provided to him by his employer. Further, it was submitted, it is erroneous to consider that the provision of a loaded gun did not place Thrower in a position of ‘power’. Although the kind of ‘power’ used in abuse cases was different to that in the present case, nevertheless, it was submitted, the employer placed Thrower in a position where he had the power to kill, or cause really serious injury to, any person with whom he came into contact.
Counsel for the applicant further noted that the judge placed some reliance of the decision of this Court in Blake. However, that case was decided before the decision of the High Court in Prince Alfred College, which had clarified the appropriate approach to the issue of vicarious liability in a case in which an employee has engaged in unauthorised criminal actions.
In conclusion, it was submitted on behalf of the applicant that, in the circumstances of the case, the employer, having provided Thrower with the weapon and identified him as a suitable person to be armed with that weapon, the employer should be held liable for the tortious conduct of Thrower in his use of the weapon.
In response, senior counsel for the respondent commenced by noting that in Prince Alfred College, the High Court had extensively reviewed the leading authorities on the issue of vicarious liability, including Deatons Pty Ltd v Flew.[24] In Prince Alfred College, the plurality had considered that the third basis of vicarious liability, identified by Dixon J in Deatons, was of particular importance, namely, where the apparent performance of the employment provided not only the opportunity, but also the ‘occasion’ for the commission of the wrongful act. In addition, counsel noted that, in Prince Alfred College, the plurality had confined the approach, identified by it, to cases involving sexual abuse of children in educational, residential or care facilities, by persons who were placed in special positions of responsibility, or power, or authority in respect of the children. In other cases, it was stated that the correct approach is to undertake the orthodox route of analysing decided cases, to determine whether those cases provided the solution to the present case.
[24](1949) 79 CLR 370 (Latham CJ, Dixon, McTiernan, Williams and Webb JJ) (‘Deatons’).
In that connection, counsel placed particular emphasis on the decision of the High Court in Deatons and the majority decision of this Court in Blake. In each case, the conduct of the employee tortfeasor involved actions which were not in furtherance of the employer’s interests, nor committed with the employer’s authority, nor were they an incident to, or in consequence of, anything that the employee was engaged to do.
Counsel submitted that the present case is not distinguishable from those two decisions in any material respect. There was no connection between Thrower’s conduct, in assaulting the applicant, and the duties that he was employed to undertake as an armed security guard. In that respect, counsel noted that the specific role, which Thrower was employed to undertake, was to be an armed escort in relation to property belonging to the Mint. His duty was to protect and secure that property. Thrower’s conduct, in gratuitously pointing his loaded weapon at the applicant, had nothing to do with the performance by him of that role. Counsel further noted that the employer had not provided Thrower with a gun in the expectation that he would use it ‘as and when necessary’. Thrower had completed training that had emphasised the limited circumstances in which an armed security guard might be justified in drawing their firearm. Thrower’s training, in that respect, had been reinforced by the employer in the present case. Accordingly, it was submitted, the conduct of Thrower, in drawing his gun and pointing it at the head of the applicant, was both unauthorised and entirely unconnected with anything he was employed to do.
Counsel further submitted that the provision of the gun, by the employer to Thrower, might have created the opportunity for him to assault the applicant, but the circumstances relied on by the applicant, fall a long way short of establishing that Thrower’s employment was the occasion for the assault. While the provision of the firearm to Thrower might have placed him in a position of ‘power’, equally, the applicant was in an identical position of power by also being provided with a firearm. At the time of the assault, both Thrower and the applicant were employed to perform exactly the same role, and there was no evidence that their duties differed in any way. Thus, the position was different to that referred to by the High Court in Prince Alfred College, where an employer might be vicariously liable where the tortfeasor employee was able to commit the wrongful act, by using or taking advantage of a special role, in which the employment had placed him or her, in respect of the victim.

Analysis and conclusion

The conduct of Thrower, in pointing the loaded firearm at the applicant, was, of itself, a criminal offence. It is well established that an employer may be vicariously liable for a tort committed by an employee, notwithstanding that the tort consists of a criminal offence by that employee. The leading authority for that principle is the decision of the House of Lords in Lloyd v Grace Smith & Co,[25] in which a firm of solicitors was held to be liable for the fraudulent conduct of its clerk, who induced a client to execute documents which transferred properties owned by her to the clerk.
[25][1912] AC 716 (Earl Loreburn LC, Earl of Halsbury and Lord Macnaghten).
The most recent statement by the High Court authority on the circumstances in which an employer may be liable for the criminal conduct of an employee is the decision of the Court in Prince Alfred College.[26] Before considering the principles stated by the High Court in that case, it is necessary, first, to discuss a number of other previous decisions, which were considered by the High Court in Prince Alfred College. Those cases include the decision of the Supreme Court of Canada in Bazley v Curry,[27] the decision of the House of Lords in Lister v Hesley Hall,[28] and the previous decisions of the High Court in Deatons[29] and State of New South Wales v Lepore.[30]
[26](2016) 258 CLR 134.
[27][1999] 2 SCR 534 (L'Heureux-Dube, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ).
[28][2002] 1 AC 215.
[29](1949) 79 CLR 370.
[30](2003) 212 CLR 511 (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).
In Bazley v Curry, the appellant, a non-profit organisation, operated two residential care facilities for the treatment of emotionally troubled children. Its employees were engaged to do everything a parent would do. The appellant hired an employee who, unbeknown to it, was a paedophile. In the course of his employment, the employee sexually abused a child in one of the homes conducted by the appellant. The Supreme Court upheld the decision of the lower court that the appellant was vicariously liable for the conduct of the employee. McLachlin J, in delivering the decision of the court, stated the applicable principles in the following terms:
The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability. Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer’s desires. …
Applying these general considerations to sexual abuse by employees, there must be a strong connection between what the employer was asking the employee to do (the risk created by the employer’s enterprise) and the wrongful act. It must be possible to say that the employer significantly increased the risk of the harm by putting the employee in his or her position and requiring him to perform the assigned tasks.[31]
[31][2002] 1 AC 215, 559-60 [49], [42].
In Lister v Hesley Hall, the defendant owned and managed a school which had a boarding house annexed to it. Over a period of three years, the warden of the boarding house, employed by the defendant, systematically abused school children who were resident in the boarding house. The House of Lords, upholding the appeal by the claimants, held that, having regard to the nature of the warden’s employment, which included close contact with the pupils and the inherent risks involved in it, there was a sufficient connection, between the work of the warden and the acts of abuse, for those acts to be regarded as having been committed within the scope of his employment.
In reaching that conclusion, Lord Steyn (with whom Lord Hutton agreed) stated the applicable principle in the following terms:
The question is whether the warden’s torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. On the facts of the case the answer is yes. After all, the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in Axeholme House. Matters of degree arise, but the present cases clearly fall on the side of vicarious liability.[32]
[32]Ibid 230 [28].
In similar terms, Lord Clyde considered that the warden’s position, and the close contact that he had with the claimants in performing his work, created a sufficient connection between the acts of abuse and the work that he was engaged to undertake.[33] Lord Millett similarly noted that the school, which was responsible for the care and welfare of the claimants, had entrusted that responsibility to the warden. In that capacity, the warden not only took advantage of the opportunity which his employment at the school gave him, but he abused the ‘special position’ in which the school had placed him to enable him to discharge his own responsibilities, with the result that the assaults were committed by the very employee to whom the school had entrusted the care of the claimants.[34]
[33]Ibid 237-8 [50].
[34]Ibid 250 [82].

The well-known decision of the High Court in Deatons has been, and, after Prince Alfred College, remains, an important underpinning of the principles relating to vicarious liability. The case is of particular significance in the present case, because it involved the question of the liability of an employer for an assault committed by an employee at a workplace.
In that case, Flew claimed damages for assault, arising from the conduct of the appellant’s barmaid who, in response to a question addressed to her as to the whereabouts of the licensee, without any cause, threw a glass at him striking him in the face. As a result, Flew suffered a serious injury to his eye, which resulted in the loss of his sight in that eye. At the trial, the jury returned a verdict in favour of Flew against both the appellant and the barmaid. On appeal, the Full Court of the Supreme Court of New South Wales directed a new trial. The High Court allowed the appellant’s appeal, and directed that verdict and judgment should be entered in its favour.
Having discussed the basis upon which the jury had reached its conclusion, Dixon J considered the basis of liability, sought to be relied on by Flew, in the following terms:
The general and somewhat indefinite position was relied upon that the barmaid was there to deal with customers and with situations and this was the manner in which she dealt with the plaintiff and the situation which he caused. 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 (see Lloyd v Grace, Smith & Co (1); Uxbridge Permanent Benefit Building Society v Pickard (2)).
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.[35]
[35]Ibid 381–2.
The principles stated by Dixon J in Deatons, and the authorities which we have discussed, arose for consideration by the High Court in State of New South Wales v Lepore.[36] In that case, the High Court was concerned with three appeals in cases in which a school pupil claimed damages for sexual assaults committed by a teacher. In their separate judgments, the members of the court adopted different approaches to the question whether, in the circumstances of the particular case, the school was vicariously liable for the conduct by the teacher.
[36](2003) 212 CLR 511.
Gleeson CJ noted that sexual abuse is obviously inconsistent with the responsibilities of any person, who is entrusted with the instruction and care of children, so that it would not readily be regarded as conduct committed in the course of employment. However, in some circumstances, the teacher, or persons associated with the children, may have responsibilities of a kind that involve ‘an undertaking of personal protection, and a relationship of such power and intimacy, that the sexual abuse may properly be regarded as sufficiently connected with the duties to give rise to vicarious liability in their employers’.[37]
[37]Ibid 544 [67].
Gummow and Hayne JJ, in their joint reasons, adopted a different approach to the issue of vicarious liability. Having referred to the principles stated by Dixon J in Deatons, they considered that vicarious liability may exist, either if the wrongful act was done in the intended pursuit of the employer’s interests or in the intended performance of the contract of employment, or, secondly, where the wrongful act was done ‘in ostensible pursuit of the employer’s business or in the apparent execution of authority which the employer holds out the employee as having’.[38]
[38]Ibid 591–2 [231].
On the other hand, Kirby J considered that the test of vicarious liability is based on the degree of connection between the enterprise and the acts alleged to constitute the wrongdoing for which the employer should be held liable. In particular, vicarious liability may be imposed where the employment materially and significantly enhanced or exacerbated the risk of the tort, or where there was a sufficient connection between the creation or enhancement of that risk and the wrong, or where the wrong may be fairly or properly be regarded as done within the scope of the employment.[39]
[39]Ibid 617–8 [316]–[318].
Those cases are the relevant background to the decision of the High Court in Prince Alfred College in 2016.
In that case, in 1962, the respondent, who was then twelve years of age, was sexually abused by a housemaster at the boarding house in which he was placed. In 2008, he commenced a proceeding for damages against the college. The Full Court of South Australia held that the school was vicariously liable for the conduct of the housemaster, and granted an extension of time to the respondent. On appeal, the High Court held that the respondent should not have been granted an extension of time. Notwithstanding that decision, the court took the opportunity to outline the principles concerning the imposition of vicarious liability in cases of the kind that were before it.
In their joint judgment, French CJ, Kiefel, Bell, Keane and Nettle JJ commenced by noting that the common law courts have struggled to identify a coherent basis for identifying the circumstances in which an employer should be held vicariously liable for the conduct of an employee, particularly when that conduct constitutes an intentional criminal act.[40] Their Honours noted that the test, whether the tortious act was committed in the course of employment, is, of itself, a conclusionary test, but nevertheless, it remains a touchstone for determining whether vicarious liability arises in a particular case.[41] Their Honours then 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.[42]
[40]Ibid 148 [39].
[41]Ibid 149 [41].
[42]Ibid 150 [46]–[47].
The plurality then proceeded to discuss a number of the decided cases, including those which we have referred to. Their Honours considered that the test applied in the Canadian cases, including Bazley v Curry, as to whether there was a significant connection between the creation of risk and the tortious act, was not supported in Australian case law.[43] They also considered that the approach, taken by Lord Steyn in Lister v Hesley Hall, should not be adopted, because the test of connection ‘does not seem to add much to an understanding of the basis for an employer’s liability’.[44]
[43]Ibid 153 [59].
[44]Ibid 156 [68].
Having discussed the different approaches, taken by the members of the High Court in State of New South Wales v Lepore, the plurality then noted that vicarious liability may arise where the employment not only provided the opportunity, but was also the ‘occasion’, for the commission of the wrongful act in question.[45] Their Honours stated the principles as follows:
In cases of the kind here in question, the fact that a wrongful act is a criminal offence does not preclude the possibility of vicarious liability. As Lloyd v Grace, Smith & Co shows, it is possible for a criminal offence to be an act for which the apparent performance of employment provides the occasion. Conversely, the fact that employment affords an opportunity for the commission of a wrongful act is not of itself a sufficient reason to attract vicarious liability. As Deatons Pty Ltd v Flew demonstrates, depending on the circumstances, a wrongful act for which employment provides an opportunity may yet be entirely unconnected with the employment. Even so, as Gleeson CJ identified in New South Wales v Lepore and the Canadian cases show, the role given to the employee and the nature of the employee’s responsibilities may justify the conclusion that the employment not only provided an opportunity but also was the occasion for the commission of the wrongful act. By way of example, it may be sufficient to hold an employer vicariously liable for a criminal act committed by an employee where, in the commission of that act, the employee used or took advantage of the position in which the employment placed the employee vis-à-vis the victim.
Consequently, in cases of this kind, the relevant approach is to consider 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. 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.[46]
[45](2016) 258 CLR 134, 159 [80].
[46]Ibid 159-60 [80]–[81] (citation omitted).
Based on those principles, the plurality explained that, in the case before it, the appropriate inquiry was whether the housemaster’s role placed him in a position of ‘power and intimacy’ in respect of the respondent, so that his apparent performance of that role gave the ‘occasion’ for the wrongful acts, and that, because he misused or took advantage of his position, his wrongful acts could be regarded as having been committed in the scope or course of his employment.[47] They concluded by specifying that the relevant approach required a careful examination of the role that the appellant had assigned to housemasters, and of the position, in which the housemaster in question had been thereby placed, in respect of the respondent and the other children.[48]
[47]Ibid 161-2 [84].
[48]Ibid 161-2 [84].
The principles identified by the High Court were applied by this Court in its recent decision in Bird v DP (a pseudonym).[49] In that case, the respondent commenced a proceeding in the Trial Division, claiming damages for psychological injuries, which he alleged he had sustained as a result of assaults, committed by a Catholic priest (Coffey), at the home of his parents some 50 years previously. The proceeding was commenced against the Diocese of Ballarat through the current Bishop (Paul Bird), who was the nominated defendant for the purpose of the proceeding pursuant to s 7 of the Legal Identity of Defendants (Organisational Child Abuse) Act 2018. The respondent made his claim on two bases. The first basis was that the Diocese was vicariously liable for the assaults committed by the priest. That basis was upheld by the trial judge. The second basis was that the Diocese was directly liable in negligence as a result of the failure by the then Bishop of the Diocese to exercise reasonable care in respect of the conduct of the priest. The trial judge rejected that basis. The appellant’s appeal to this Court was dismissed.
[49][2023] VSCA 66 (Beach, Niall and Kaye JJA).
On appeal, two questions arose concerning the judge’s conclusions on the issue of vicarious liability. The first question, which does not arise in this case, was whether the relationship between the Diocese and the priest was such that it could give rise to the imposition of vicarious liability on the Diocese in an appropriate case. This Court answered that question in the affirmative. The second question was whether, in the particular circumstances of that case, the Diocese was vicariously liable for the particular assaults committed by the priest. In considering the judge’s conclusions on that question, the Court noted the evidence on which the judge concluded that the position of power and intimacy, invested in the priest, had provided him not only with the opportunity to sexually abuse the respondent, but also constituted the occasion for the commission of those wrongful acts. In that respect, the Court noted the degree of trust which, by virtue of his office, the priest had reposed in him by the parents of the respondent, and how, by virtue of his office as a priest performing pastoral duties, he was able to have close contact with, and abuse, the respondent.[50] It was in those circumstances that the court concluded as follows:
In those circumstances, in terms of the principles stated by the plurality in Prince Alfred College, it is evident that, by virtue of his role as assistant priest, Coffey was placed in a position of authority, power and trust in respect of his parishioners, such that he was able to achieve a substantial degree of intimacy with them and their families. Accordingly, it may be concluded that Coffey was placed in such a position of power, authority and control in relation to the respondent’s family, and in particular the respondent, as to provide him ‘not just the opportunity but also the occasion’ for the wrongful acts which he committed against the respondent.[51]
[50]Ibid [150].
[51]Ibid [153].
Finally, it is necessary also to refer to the decision of this Court in Blake.[52] That decision pre-dated the decision of the High Court in Prince Alfred College. However, the facts of the case do have some similarity to the circumstances of the present case. Further, the decision of the majority in that case would, with respect, seem to be in conformity with the principles stated by the High Court in Prince Alfred College.
[52](2012) 38 VR 123 (‘Blake’).
In Blake, the appellant, a fuel tanker driver employed by the respondent, was injured as a consequence of an incident involving a fellow employer at the Portland Dockyards. On the previous evening, the appellant, the fellow employee Lindsay Jones (‘Jones’), and another employee, Darryl White, had each driven tankers, loaded with fuel, to the wharf at Portland, in order to refuel a survey vessel that was due to dock at the wharf on the following morning. The arrival of the vessel was delayed until the late afternoon on that day. While the appellant and White stood, looking out to sea, Jones spontaneously struck the appellant hard on the back of the knees, causing him to lose balance and fall, as a consequence of which the appellant sustained a serious injury to his back. While no direct evidence was led as to Jones’ motive, his conduct was described as a spontaneous act of a prankster.[53] The Court of Appeal, by majority, dismissed the appellant’s appeal, holding that, in the circumstances, the respondent was not vicariously liable for the conduct of Jones.
[53]Ibid 137 [66] (Harper JA).
Harper JA (with whom Robson AJA agreed) extensively reviewed a number of the authorities, including those to which we have referred, including State of New South Wales v Lepore and Deatons. His Honour then stated:
The action of Mr Jones in hitting Mr Blake and thus causing his near collapse was done neither in furtherance of the interests of J R Perry Nominees Pty Ltd nor under its expressed or implied authority. Nor was it an incident to or in consequence of anything Mr Jones was employed to do. It was a spontaneous act of a prankster. No proper thought was given to it. The occasion for the prank, and the form it took, may have arisen from the fact that Mr Jones was a truck driver employed by the defendant; but a prank of this kind, generated wholly within the confines of Mr Jones’ brain, was not within the course of his employment as a truck driver.[54]
[54]Ibid.
Harper JA then concluded that, no matter which of the several tests stated in the authorities applied, the appellant’s case did not pass any of them. In particular, if the broader test defined by McLachlin J in Bazley applied (whether the wrongful act was sufficiently related to the conduct authorised by the employer), in the instant case, there was no significant connection between the creation or enhancement of the risk of the prank committed by Jones, and on the other hand, Jones’ employment with the respondent. Further, if the test propounded by Lord Steyn in Lister v Hesley Hall were applied, Jones’ act was not so closely connected with his employment that it would be just and fair to hold the respondent vicariously liable for it. Harper JA then noted that the test, propounded by Gaudron J, and by Gummow and Hayne JJ, in State of New South Wales v Lepore, would be of no assistance. Applying the latter test, Jones’ conduct was not done in intended pursuit of the interests of the respondent, nor in intended performance of the contract of employment, nor was it done in ostensible pursuit of the respondent’s business or an apparent execution of authority the respondent held Jones out as having.[55]
[55]Ibid 137-8 [67]–[70].
Harper JA considered that there was insufficient evidence upon which to conclude that Jones’ actions were the product of employment-related boredom and frustration. His Honour further noted that, in any event, the state of mind or motive of the wrongdoer is not relevant to the question of vicarious liability, except where it is demonstrated that the wrongdoer was seeking to advance the interests of the employer.[56]
[56]Ibid 138-9 [73]–[78].
In her dissenting judgment, Neave JA noted that it was necessary, in each case, to examine the particular factual context in which the wrongful act is done by the employee.[57] In that respect, her Honour took into account the long period of delay in which the appellant, and Jones and White, were required to wait for the arrival of the vessel, which they were to refuel. Her Honour also noted that the men were not prohibited from engaging in physical recreational and similar activities during that period of time, so that there was a real possibility that, in such circumstances, one of them would engage in ‘clowning or horseplay’, to while away the time.[58] Her Honour further considered that playing a prank on a fellow worker, such as was done by Jones, was of the same character as the ‘skylarking or clowning’ in which the drivers had indulged while waiting for the ship, so that Jones’ conduct occurred in the course of his employment, or was ‘at least sufficiently incidental to the performance of his duty’ to be regarded as falling within the scope of it.[59]
[57]Ibid 126 [12].
[58]Ibid 129 [26].
[59]Ibid 130 [34].
Based on the foregoing review of the authorities, the following principles, elucidated by the High Court in Prince Alfred College, are relevant to the determination of the present case:
(1)The fact that a wrongful act, committed by the employee, may be a criminal offence, does not preclude the imposition of vicarious liability in a particular case.
(2)On the other hand, in order to establish vicarious liability, it is not sufficient that the employment of the wrongdoer provided the opportunity for the commission of that wrongful act.
(3)Nor is it sufficient that there was a significant or very close connection between the employment of the wrongdoer and the creation or enhancement of the risk of the wrong.[60]
(4)The critical test is whether the specific role assigned by the employer to the wrongdoer, and the performance by the wrongdoer in that role, has constituted the occasion for the commission by the employee of the wrongful act.
(5)In determining that question, it is necessary to take into account specific features of the role assigned to the employee, which include characteristics such as authority, power, trust, control and the ability to exploit the relationship, which the employment places the wrongdoer in, in respect of a vulnerable victim.[61]
[60]Prince Alfred College (2016) 258 CLR 134, 153 [59]; State of New South Wales vLepore (2003) 212 CLR 511, 543 [65] (Gleeson CJ), 560 [126] (Gaudron J), 588–9 [223] (Gummow and Hayne JJ).
[61]Prince Alfred College (2016) 258 CLR 134, 159–60 [81]–[82].

It is important to note that the critical aspect of the test prescribed by the High Court – that the employee’s specific role be the ‘occasion’ for the commission of the tort – was expressly derived from the central passage in the judgment of Dixon J in Deatons. Contrary to the submission by counsel for the respondent, it is evident that the principles outlined by the High Court in Prince Alfred College, are not confined to cases involving sexual assault by an employee.
Quite clearly, in applying those principles, there is no bright line of distinction between conduct of an employee which might attract vicarious liability on the one hand, and conduct which does not. As the majority in Prince Alfred College cautioned, in each case the appropriate approach is to consider whether the applicable principles, as applied in previous cases, furnish an appropriate solution to the issue in the instant case.
In applying that approach, it may be observed that this case does have some common features with the conduct of the barmaid in Deatons and of the fuel tanker driver in Blake. On the other hand, there are relevant differences between the present case and those two decisions. In particular, as emphasised by counsel for the applicant, the employer engaged Thrower as an armed security guard and for that purpose armed him with a loaded firearm. Of itself, such a weapon is dangerous. The glass which the barmaid, in Deatons, threw at the plaintiff was not an item which is ordinarily used or intended to be used as a weapon of assault. By contrast, it may be accepted that the specific purposes of a firearm include its use as a weapon of assault — whether by way of intimidation or of physical assault. Further, in the present case, the employer had delegated to Thrower its role as an armed guard. It had selected him, assigned him the role, and for that purpose provided the weapon to him.
In that way, it must be accepted that the present case is closer to the line, which demarcates cases in which vicarious liability is imposed, than the circumstances that existed in Deatons. The same observation may be made of the circumstances in Blake. Whatever motivated Thrower to point his loaded weapon at the applicant, at the time of the incident, he was performing his specific guard duties in tandem with the applicant. Thrower’s firearm had been entrusted to him for the performance of that duty. In different circumstances, the use that he made of the firearm — to point at a person to intimidate that person — would be an action contemplated by and within the scope of his specific authority as an armed guard. As counsel for the applicant emphasised, Thrower had been entrusted with the firearm for that specific purpose.
The critical question, then, is whether those additional elements — which were not present in the cases of Deatons and Blake — have the effect that the circumstances of this case were such as to render the employer vicariously liable for the conduct of Thrower.
In order to answer that question, it is necessary to return to the principles that underlie the existence of vicarious liability in cases involving the sexual abuse by a person in authority. Those cases illustrate, quite distinctly, what the High Court, in Prince Alfred College, connoted by its reference to the ‘power, authority, trust, control and ability to achieve intimacy’, which, it considered, in such cases are critical factors necessary to a conclusion in favour of vicarious liability. As the High Court noted, it is the existence, nature and degree of those particular facets — and the very specific role entrusted to the wrongdoer — that distinguish cases in which employment has provided the ‘opportunity’ for the commission of the tort, from cases in which employment has constituted the occasion for the commission of that tort.
Quite clearly the sex abuse cases are quintessential instances of circumstances in which vicarious liability may be found to apply. Those cases are, of themselves, sui generis. Nevertheless, as the High Court made clear, it was the specific attributes of the employment relationship — the investing of the wrongdoer with the power, authority and control over the victim, and with the capacity to use those aspects of the relationship to commit a wrong in respect of a victim — that was the basis of the imposition of vicarious liability in those cases. Thus, in Bird, this Court took into account the particular facets of the role performed by the priest, and, in particular, the way in which that role empowered and enabled the priest, by virtue of his office, to develop a trusting and intimate relationship with the victim’s parents and the victim himself, that thus enabled him to commit the acts of sexual abuse.
In the present case, while, as we have discussed, the employer did provide to Thrower the loaded firearm, and authorised him to carry it, and, where necessary, to use it in the course of his employment, it could not be concluded that the nature of the relationship between Thrower and the applicant, nor the degree of ‘power or control’ which Thrower might have derived from that relationship, could properly be equated with that which was discussed by the High Court in Prince Alfred College and by this Court in Bird.
Certainly, the role of the applicant and Thrower as armed security guards working together involved issues of trust and mutual reliance. The capacity of each of them to misuse their firearms did, to that extent, provide them with the ability to exercise some power over each other. However, that relationship, and that aspect of power, were of an entirely different quality and degree to the authority, power and control, invested by the employer in the wrongdoer in the sexual abuse cases, and which was integral to the relationship between the wrongdoer and the victim in those cases, in the sense explained by the High Court in Prince Alfred College.
The actions of Thrower were entirely disconnected from the role that he was required to perform as a security guard. His employment as an armed security guard might have enabled him to misuse his firearm to threaten the applicant, but it otherwise lacked any other connection with the duties entrusted to him. As such, the circumstances of this case were completely different, and distinguishable, from cases in which vicarious liability has been imposed where a security guard has exercised excessive zeal or force in performing his or her authorised duties.[62]
[62]See for example, Starks v RSM Security Pty Ltd [2004] NSWCA 351; Sandstone DMC Pty Limited v Trajkovski & Anor [2006] NSWCA 205; Ryan v Ann St Holdings Pty Ltd (2006) 2 Qd R 486; [2006] QCA 217.
For those reasons, while Thrower’s employment with the employer certainly provided the opportunity for him to perform the wrongful act of pointing his weapon at the applicant, on the facts of the case, it could not be concluded that that employment, or the circumstances of it, constituted the ‘occasion’ for the commission by Thrower of that tort, in the sense discussed by Dixon J in Deatons and by the majority in Prince Alfred College.
Accordingly, the applicant does not succeed on either of the two proposed grounds of appeal. We would grant the applicant leave to appeal, but dismiss the appeal.
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[2023] VSCA 144

15 June 2023