NSW v Lepore & Anor, Rich v Qld, Samin v Qld & Ors

The High Court of Australia considered appeals in three separate cases: *NSW v Lepore & Anor*, *Rich v Qld*, and *Samin v Qld & Ors*. These cases all concerned the liability of a State for the tortious acts of its employees, specifically in circumstances where the employee was acting outside the scope of their employment but in the course of performing tasks for the employer. The central dispute revolved around whether the respective States could be vicariously liable for the wrongful conduct of their employees, who were acting in a personal capacity but during work hours and using employer resources.

The primary legal issue before the High Court was to determine the circumstances under which a State can be held vicariously liable for the tortious acts of its employees. This involved considering the established principles of vicarious liability, particularly in the context of public sector employment, and whether those principles should be extended or modified to encompass situations where an employee's conduct, though wrongful and not authorised, was closely connected to or incidental to the performance of their employment duties. The court was required to assess the scope of employment and the degree of connection between the employee's wrongful act and their authorised functions.

The High Court, in a joint judgment, affirmed the general principles of vicarious liability, holding that an employer is liable for the torts of an employee committed in the course of employment. However, the court clarified that this liability does not extend to acts that are merely done during work hours or at the workplace, but are entirely unconnected with the employee's duties. The critical factor is the nature of the employment and whether the employee's wrongful act was so closely connected with, or incidental to, the performance of their authorised duties that it could be considered part of the employment. The court distinguished between acts that are authorised and acts that are merely done in the course of employment, emphasising that the latter can attract vicarious liability only if there is a sufficient connection. In *Lepore*, the court found the State not liable as the acts were not sufficiently connected to the employment. In *Rich* and *Samin*, the court found the States vicariously liable because the wrongful acts were found to be so closely connected to the employees' duties that they were considered to be within the scope of employment for the purposes of vicarious liability.