Legal Research
Cases
Garrett v VWA

Garrett v VWA

Case [2023] VSCA 144 15 June 2023

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0109

LANCE JAMES GARRETT	Applicant
v
VICTORIAN WORKCOVER AUTHORITY	Respondent

---

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)

---

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.

---

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Garrett v VWA

Details

AGLC: Garrett v VWA [2023] VSCA 144
Case: [2023] VSCA 144
Decision Date: 15 June 2023

CaseChat Overview and Summary

The applicant, Garrett, brought an appeal against the decision of the Trial Division, seeking damages for psychological injury he sustained while employed as an armed security guard. His claim arose from an incident where a co-security guard, for no apparent reason, pulled a loaded firearm out of its holster and pointed it directly at Garrett’s head, causing him significant psychological harm. The Trial Division dismissed Garrett’s claim, finding that his employer, VWA, was not vicariously liable for the actions of the co-security guard. Garrett argued that the judge erred in failing to find that VWA was vicariously liable for the co-security guard’s actions and in not concluding that the employment provided the ‘occasion’ rather than merely the ‘opportunity’ for the wrongful act.

The central legal issues in this appeal were whether the judge was correct in finding that Garrett’s employer was not vicariously liable for the co-security guard’s actions and whether the judge erred in not concluding that the employment provided the ‘occasion’ for the wrongful act. Garrett contended that the judge should have applied the test from Prince Alfred College Incorporated v ADC and Deatons Pty Ltd v Flew, which considers whether the wrongful act was so closely connected to the employment as to be regarded as a mode, though an improper mode, of doing it. Garrett further argued that the employment provided the ‘occasion’ for the wrongful act, as per the decision in Lister v Hesley Hall Ltd and State of New South Wales v Lepore.

The Court of Appeal found that the judge did not err in dismissing Garrett’s claim. The court held that the co-security guard’s actions were not so closely connected to his employment as to make VWA vicariously liable, considering the test from Deatons Pty Ltd v Flew and the principle established in Prince Alfred College Incorporated v ADC. The court further found that the employment did not provide the ‘occasion’ for the wrongful act, as the act was not an integral part of the employment duties. The court relied on the decision in Bird v DP to support its conclusion. Therefore, the appeal was dismissed, and Garrett’s claim for damages was rejected.

Orders