Starks v RSM Security Pty Ltd

The appeal before the Court of Appeal of New South Wales concerned the vicarious liability of an employer for the actions of its employees and, in some circumstances, independent contractors. The dispute arose from an incident where the plaintiff alleged he was subjected to excessive force by security personnel. The plaintiff sought to hold RSM Security Pty Ltd (the first respondent) and other defendants liable for the actions of the security guards.

The central legal issues before the court were whether RSM Security Pty Ltd could be held vicariously liable for the wrongful acts of its employees, particularly when those acts might be considered to be "on a frolic of his own," and whether the company could be liable for the actions of an independent contractor if it exercised control over that contractor and the contractor acted as its representative. The court also considered the implications of the *Liquor Act 1982*, specifically whether a statutory obligation imposed on a licensee rendered that obligation non-delegable for the purposes of tort law, and whether section 103 of the Act had any bearing on the liability of a licensee for the use of excessive force by a third party not directly employed by them.

The court reasoned that an employer is generally vicariously liable for the unauthorised and illegal acts of an employee if those acts are committed in the course of employment, but not if they are committed "on a frolic of his own." Regarding independent contractors, liability could arise if the principal exercised control over the contractor and the contractor was acting as the principal's representative. The court determined that a statutory obligation under the *Liquor Act 1982* did not automatically render that obligation non-delegable in tort law, and section 103 of the Act did not address the liability of a licensee for excessive force used by a third party not directly employed by them.

The appeal was allowed in part and dismissed in part. The verdict for the second defendant (first respondent) was set aside, and a verdict was entered for the plaintiff against the second defendant, with judgment accordingly. The verdicts for the third and fourth defendants (second and third respondents) were affirmed. The costs order below in favour of the respondents was set aside, with the first respondent ordered to pay the appellant's costs of the appeal and the hearing at first instance. The second and third respondents were ordered to bear their own costs of the appeal and below, except for separately incurred costs not common with the first respondent, which the appellant was to pay.