Australia: Case Note: Sprod bnf v Public Relations Oriented Security Pty Limited

Last Updated: 20 November 2007

In Brief

  • The Court of Appeal of Appeal overturned the trial judge's verdict for the defendant in a case where the plaintiff was viciously assaulted by security guards in a laneway.
  • Background

  • In the early hours of the morning, the plaintiff went to a pizza shop near the Wagon Wheel Hotel and made a pest of himself. He was intoxicated and behaving in an aggressive manner.
    • The owner of the pizza shop had an arrangement with the nearby St. Marys Band Club whereby uniformed staff of the Band Club and security staff who worked at the Club were offered a discount rate on pizza's and drinks in return for their assistance with security issues which arose in the pizza shop.
    • When the plaintiff began causing trouble, the owner of the pizza shop contacted the defendant's security staff following which two bouncers arrived, identified by their uniform as employees of the defendant.
    • The guards requested the plaintiff and his friends to leave. When they refused to leave, the security guards grabbed the plaintiff and dragged him outside. The plaintiff was swearing, abusing and insulting the guards and generally behaving in a provocative manner.
    • The plaintiff was taken into a dark laneway by two of the guards whilst two other guards kept guard on the highway.
    • A woman in the pizza shop testified that the guards returned to the shop about 10 minutes later. She then heard one of them say, "Don't worry about it. We just kicked his head in". A short time later the plaintiff was seen lying in a laneway with his head in a pool of blood. The plaintiff sustained permanent brain damage.

    Decision of Trial Judge

  • Cooper AJ was satisfied that on the evidence the security guards had assaulted the plaintiff.
    • The plaintiff rested his case on two alternative causes of action. Firstly, the personal negligence of the defendant security firm and, secondly, vicarious liability of the defendant for the assault committed by its employees.
    • The trial judge rejected the plaintiff's allegation that the defendant had failed to properly train and supervise its employees and to take reasonable steps to prevent them from assaulting individuals. His Honour found that each of the security guards held an appropriate licence and had been given training that they were to use force only as a last resort and that such force must not be more than what was reasonable in the circumstances. His Honour found the plaintiff's injuries were caused by the security guards disobeying the instructions which they had been given by their employer.
    • The defendant argued that the conduct of its employees in taking the plaintiff into the laneway and assaulting him was a criminal act in no way connected with their employment. His Honour accepted this argument and found the assault was so severe that it was outside the scope of the guards' employment.
    • His Honour also accepted that an employer may be liable for unauthorised acts if those acts may be regarded as improper modes of carrying out authorised acts, however this was not such a situation as the guards were on an independent "frolic of their own".
    • His Honour cited with approval the decision of the High Court in Deatons Pty Limited v Flew (1949) 79 CLR 370 where a barmaid had thrown a glass of beer into the face of the plaintiff causing him injury. The High Court, per Dixon CJ, found the actions of the barmaid were not actions for which her employer was liable as they were not performed under the express or implied authority of the employer "nor as an incident to or in consequence of anything the barmaid was employed to do". His Honour found this description accurately described the conduct of the two security officers in this case.
    • His Honour also referred to State of NSW v Lepore (2003) 212 CLR 511 where Gleeson CJ said

    "Where acts of physical violence are concerned, the nature and seriousness of the criminal act may be relevant to a judgment as to whether it is to be regarded as a personal, independent act of the perpetrator, or whether it is within the scope of employment. A security guard at business premises who removes a person with unnecessary force may be acting in the course of his employment. On the other hand … extreme and unnecessary violence, perhaps combined with other factors, such as personal animosity towards the victim, might lead to a conclusion that what is involved is an act of pure personal vindictiveness."

    • In this case however, the plaintiff's injuries were not inflicted in the course of removing him from the premises. They were inflicted some distance away in a laneway and the force used went far beyond reasonable force to remove him or keep him away from those premises.
    • His Honour found that the conduct of taking the plaintiff into the lane and viciously assaulting him about the head was not connected with any authorised method of the security guards doing their job. It was clearly an independent act. Accordingly, the plaintiff failed to satisfy the Court that the assault upon him was brought about by conduct for which the defendant bore any legal responsibility.
    • Judgment was accordingly entered for the defendant.

    Court of Appeal Decision

  • The plaintiff appealed. The appeal was upheld with Ipp JA delivering the unanimous judgment.
    • On appeal, the plaintiff argued that Cooper AJ erred in failing to consider that an employer may be liable for unauthorised acts if they are so connected with authorised acts that they may be regarded as modes, although improper modes, of doing them, pursuant to the decision in Deatons.
    • Ipp JA observed that in Deatons, Latham CJ held the barmaid's throwing of the beer was a "gratuitous, unprovoked act which had nothing at all to do with the performance of the duties of the barmaid" and Dixon J had held the barmaid's action was a "spontaneous act of retributive justice".
    • Ipp JA found favour with a quote from Salmond's Law of Torts cited in Deatons Pty Limited -v- Flew that an employer "is liable even for acts which he has not authorised, provided they are so connected with acts that he has authorised that they may be regarded as modes – although improper modes – of doing them".
    • The formulation of this test was also approved in Lepore although Gleeson CJ in that case observed there are many examples of cases where an act of intentional, criminal wrongdoing, solely for the benefit of the employee, has been found to be in the course of employment. Accordingly, Ipp JA was satisfied that the weight of authority provided for circumstances under which an employer could be vicariously liable for unauthorised acts of an employee, even where those acts were criminal and even where the employer had expressly instructed the employee not to engage in such acts.
    • His Honour held that the evidence as to what the guards said after the assault in relation to the plaintiff not causing any further trouble at the pizza shop helped establish their actions were in the course of their employment. Furthermore, the fact that the guards had acted in concert with two guards keeping guard while the other two took the plaintiff into the laneway indicated "a planned and deliberate course of conduct and not a spontaneous act triggered by personal animosity and pure personal vindictiveness". His Honour found the assault was "incidental" to the employment of the security guards in the sense used by Latham CJ in Deatons. It was not a gratuitous unprovoked act and it had a great deal to do with the performance of the guards' duties.
    • His Honour referred to Starks v RSM Securities Pty Limited & Ors [2004] NSWCA 351 where the security guard's employer was found to be vicariously liable in circumstances where the employee head butted the plaintiff who refused to leave the premises when asked to do so.
    • Ipp JA held that the conduct of the guards was so connected with acts that the defendant authorised them to perform that they may be regarded as "modes" – although highly improper modes – of doing them and thus fell within the test formulated by Salmond which was approved in Deatons and Lepore.
    • Accordingly, the plaintiff's appeal succeeded.


  • On one view, this decision goes against the weight of authority in the Court of Appeal and the High Court that an employer cannot be held vicariously liable for the acts of an employee which are committed outside the scope of employment. Alternatively, this case turns on its own facts in circumstances where the plaintiff's behaviour was so aggressive and provocative that the Court of Appeal took the view that the guards were justified in completely removing the plaintiff from the premises and reacting with considerable force. His Honour Ipp JA also appears to have been swayed by the fact that there were four guards acting in concert. His Honour interpreted this as evidence that the actions of the security guards were planned rather than spontaneous.
    • This decision is authority that a security guard who removes a person with unnecessary force may be acting in the course of employment. We note this was the case in Starks v RSM Securities Pty Limited & Ors [2004] NSWCA 351 and is also consistent with the recent decision of Sandstone DMC Pty Limited v Trajkovski [2006] NSWCA 205 where the plaintiff was evicted from licensed premises by a security guard who assaulted him after a subsequent verbal exchange. In that case the Court of Appeal held there was a sufficient causal connection between the assault and the guard's duties in ridding the Club of a troublesome patron as the assault occurred moments after the guard had removed the plaintiff from the premises.
    • In our view, this case may be distinguished from Trajkovski as the guards’ actions in taking the plaintiff away to a laneway arguably took them beyond the pursuit of their employment. It is also clear that the guards' employer had no knowledge of their actions and no way of controlling their actions.
    • In our view, this case could well have been decided the opposite way and the plaintiff was fortunate to succeed on appeal. Despite the extremely provocative behaviour of the plaintiff, we consider the extremely vicious nature of the assault could well have taken the actions of the guards outside the scope of their employment duties.
    • This decision will provide some encouragement to plaintiffs seeking to bring claims in similar circumstances involving assaults by security guards.

    The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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