Is the Department of Education liable if one of its teachers sexually assaults a student? Can a security provider be held liable for an unlawful assault by one of its security guards on a member of the public? These are scenarios that Courts have recently considered in relation to employer liability.
The common issue in many of the cases is determining how far an employer’s liability extends for illegal acts committed by its employees.
In general, the rule is that an employer will be liable for a criminal act when it was:
- incidental to the employee’s employment (ie, the act was within the scope of the work the employee was employed to perform); and
- in furtherance of the employer’s interest.
A recent case came before the NSW Court of Appeal (Sprod bnf v Public Relations Oriented Security Pty Ltd [2007] NSWCA 319) where two security guards of a pizza shop assaulted a man who was drunk and acting aggressively towards the shop’s customers. The guards took the man to a nearby alleyway, assaulted him and left him in an unconscious state, which resulted in him sustaining permanent brain damage.
Although an improper and unauthorised attack, this assault was found to be incidental to the employment of the guards in fulfilling their duties “by ensuring that the assaulted man would not again make a pest of himself at the shop … and molest the customers.” The court also found that the assault was committed in furtherance of the security company’s [employer's] interest. The criteria set down by the High Court above was satisfied which resulted in the security company being liable for the intentional wrongdoing of its security guards.
The nature and seriousness of the acts committed will also be considerations taken into account by the court in seeking to attribute liability to employers. It is likely that this issue will be looked at on a case-by-case basis and employer liability will depend on the particular facts in question.
