Vicarious liability for an assault by a worker on a patron

Howl at the Moon Broadbeach Pty Ltd v Lamble [2014] QCA 74

 

The plaintiff was struck with a metal pole by a co-worker coming to the ‘rescue’ of colleague who was involved in fracas outside of their place of employment, a nightclub. Muir JA delivered the leading judgment with whom Holmes JA and Ann Lyons J concurred. His Honour helpfully reviewed the authorities and discussed their application in circumstances of the employee furthering the employer’s interests within the scope of their employment, but in an improper way or means.

[25] The emphasis of the appellant’s argument was on the “identification of what the employee [was] actually employed to do”. Much was made of the instructions, which the primary judge accepted, were given to Mr Cerantonio about leaving security issues to the security staff. That focus is too narrow. Deatons Pty Ltd v Flew[17] concerned the liability of a publican for the conduct of a barmaid who threw beer from a glass into a customer’s face and then threw the glass which injured the customer’s eye. Dixon J was prepared to accept that the publican would have been liable if “the barmaid’s action was an instinctive act of self-defence against an assault made upon her whilst she was doing, and because she was doing, what she was employed to do”.[18] Dixon J also implicitly found that a master may be vicariously liable for acts to which:[19]

“… 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; Uxbridge Permanent Benefit Building Society v Pickard).” (citations omitted)

[26] In Lepore, Gummow and Hayne JJ observed that Dixon J in Deatons identified two circumstances which may attract vicarious liability for the intentional tort of an employee:[20]

“… first, where the conduct of which complaint is made 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 conduct of which complaint is made was done in the ostensible pursuit of the employer’s business or the apparent execution of the authority which the employer held out the employee as having.”

[27] Their Honours had earlier identified “the requirement that the [employee’s] wrongdoing [be in order to attract to vicarious liability] be legally characterised as having been done in the course of employment” as “an essential aspect of the rules about vicarious liability”.[21]

[28] Mr Cerantonio’s stated work in the nightclub was a “glassy”, doing “bits and pieces around the place, collecting glasses, cleaning dishes, stuff like that”. He said that prior to 8 December 2006 he had been a bar manager but did not have that position on 8 December, although he opened the bar that evening and one of his duties was to serve drinks.

[29] The general performance of the normal functions of security staff was not within Mr Cerantonio’s terms of employment. He had been instructed “to leave security issues to the security staff”. I do not accept, however, that such an instruction covered all possible contingencies and, in particular, those in which security staff were not present or were otherwise unable to act in time to respond to an emergency. The words emphasised in paragraph [11] hereof cannot be construed as a finding that Mr Cerantonio had actually been instructed not to engage in conduct of the nature of that involved in his attack on the respondent. The words emphasised in paragraph [10] hereof contain the primary judge’s primary finding on point. The emphasised words in paragraph [11] relate back to the primary finding as is apparent from the words “as I have said at [65]”.

[30] Mr Cerantonio was faced with a choice; act immediately and go to the aid of the endangered Mr Zulli or seek help from security staff. If he chose the latter course, the risk that Mr Zulli would sustain further and potentially serious injuries would be substantially increased. He made his choice and swung the dustpan at the respondent. In so doing, he acted to protect another employee who was also a manager of the appellant’s business.

[31] The primary judge was right in finding that Mr Cerantonio’s actions were in the course of this employment. It was in the interests of the appellant that Mr Zulli be aided and protected and that the fracas in which he was involved be stopped. There was evidence to the effect, and it is obvious, that brawling outside a nightclub is likely to be off putting to patrons and potential patrons, particularly of the nature of those who formed the nightclub’s normal clientele.

[32] The appellant argued that there was insufficient connection between Mr Cerantonio’s responsibilities as an employee and his assault as the assault occurred in the mall outside the nightclub and his duties did not extend to performing acts outside the nightclub premises.

[33] Although Mr Cerantonio’s duties could normally be expected to be confined to the nightclub premises, it is improbable that it would not have been within the scope of his duties to clean up broken glass outside the front door or to clean the exterior of the door and its surrounds. More significantly, there was a direct connection between the attack on Mr Zulli and the operation of the nightclub. In the course of ejecting a troublemaker from the premises, Mr Zulli went outside the premises and was immediately attacked by supporters of the ejected patron. Neither Mr Zulli nor Mr Cerantonio was engaged on a frolic of his own. The attack on Mr Zulli was not a random attack by miscreants in a public place. It was perpetrated by disgruntled nightclub patrons immediately outside the nightclub in a continuum of an incident within the nightclub.

[34] It was argued also that the level of violence employed by Mr Cerantonio was such that his act should be regarded as “a personal, independent act of the perpetrator”[22] rather than an act in the course of employment. This argument cannot be accepted. The force used was excessive but it was the product of the spontaneous reaction of an inexperienced youth to a situation which was extremely confronting. It was not a random act of violence, its sole object being to assist Mr Zulli.

[35] It is relevant also that despite the relatively sedate nature of the nightclub’s clientele, the service of alcohol late at night gave rise to the risk that, despite the employment of security staff, bar staff may be faced with situations in which they needed to act in their own defence or in defence of other employees.

[36] In Hollis v Vabu Pty Ltd,[23] Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ, discussing the rationale for the imposition of vicarious liability, said:

“In general, under contemporary Australian conditions, the conduct by the defendant of an enterprise in which persons are identified as representing that enterprise should carry an obligation to third persons to bear the cost of injury or damage to them which may fairly be said to be characteristic of the conduct of that enterprise. In delivering the judgment of the Supreme Court of Canada in Bazley v Curry, McLachlin J said of such cases that ‘the employer’s enterprise [has] created the risk that produced the tortious act’ and the employer must bear responsibility for it. McLachlin J termed this risk ‘enterprise risk’ and said that ‘where the employee’s conduct is closely tied to a risk that the employer’s enterprise has placed in the community, the employer may justly be held vicariously liable for the employee’s wrong’. Earlier, in Ira S Bushey & Sons, Inc v United States, Judge Friendly had said that the doctrine of respondeat superior rests ‘in a deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities’.”

[37] The relevant conduct of Mr Cerantonio was in the pursuit of the appellant’s interests and/or in the ostensible pursuit of the appellant’s business.

[38] Moreover, Mr Cerantonio acted in an emergency to protect an employee of the appellant acting within the scope of that employee’s duty. In Poland v John Parr & Sons,[24] the Court of Appeal considered the liability of a master whose servant, in acting to prevent a boy stealing from the master’s wagon, struck the boy causing him injury. It was held that the employee had an implied authority. Atkin LJ observed:[25]

I am of the same opinion. With great respect to the learned judge I think his judgment goes wrong where he says ‘The blot, the failure in this case is that he [Hall] was not then in fact acting in the course of his employment …. nor was he in fact doing an act incidental to it.’ The learned judge took the view that the servant was not doing an authorized act, because he was not doing an act of the class which was expressly authorized, and therefore his act could not be authorized. Bank of New South Wales v. Owston shows that to be an erroneous view. The learned judge has not given enough weight to the consideration that a servant may be impliedly authorized in an emergency to do an act different in kind from the class of acts which he is expressly authorized or employed to do. Any servant is as a general rule authorized to do acts which are for the protection of his master’s property. I say ‘authorized,’ for though there are acts which he is bound to do, and for which therefore his master is responsible, it does not follow that the servant must be bound to do an act in order to make his master responsible for it.” (Citations omitted)

[39] The view that Mr Cerantonio had implied authority to act in the protection of Mr Zulli is also supported by observations of Mr P S Atiyah in Vicarious Liability in the Law of Torts. After discussing Poland and Nightingale v Cocker,[26] the learned author observed:[27]

“Evidently, the steps taken in an emergency must bear some reasonable relationship to the end sought to be achieved otherwise authority to take those steps could not be implied. But once it is determined that there was implied authority, the reasonableness or otherwise of the steps taken are (except perhaps in very exceptional circumstances) largely irrelevant, for the unreasonableness of the servant’s conduct will only go to show that he has performed an authorised act in an improper way.

On the same principle a servant may, in an emergency, very well have implied authority to take reasonable steps to protect people present on the employer’s premises, at all event where they are present in the pursuance of a contract under which the employer is bound to exercise reasonable care for their safety. So in a workman’s compensation case, it was held that a man employed on the defendants’ ship as a baker had implied authority to protect some lady passengers from insulting behaviour on the part of a third person.” (References omitted)

 

David Cormack – Brisbane Barrister 

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