Australia: Frolics Or Authorised Acts?

Last Updated: 15 April 2008
Article by Craig Hyde

In the recent cases of Sprod v Public Relations Oriented Security Pty Limited [2007] NSWCA 319 and Elite Protective Personnel Pty Limited v Salmon [2007] NSWCA 322, the NSW Court of Appeal dealt with issues arising from the excessive use of force by security guards. The cases, although quite different, demonstrate some of the difficulties faced by employers where an employee acts outside the acceptable scope of his or her duties.

Sprod v Public Relations

The issue in this case was whether the employer of two bouncers who assaulted the plaintiff, Sprod, was vicariously liable for the actions of its employees.

In December 2001, security guards employed by Public Relations Oriented Security (PROS) were called to assist the owner of a pizza shop. The pizza shop was near a licensed club where the PROS employees worked as bouncers. An arrangement had been reached where the owner of the pizza shop could seek assistance from the security guards in times of trouble.

On the night in question, Sprod was in the pizza shop. He was drunk and being abusive and offensive to female patrons. The security staff was called and Sprod was escorted from the pizza shop and asked by the security guards to leave. When Sprod failed to leave, two of the four security guards took him down a nearby alley way and 'kicked his head in'.

Sprod was hospitalised for almost four months and was left with permanent brain damage.


At first instance, the Supreme Court held that the actions of the security guards were not in the course of their employment:

'That brutal and vicious assault was not for the purpose of subduing him. It was so severe and unnecessary that it was motivated by the blood lust of the security officers involved. I would therefore hold the assault upon the [plaintiff] by the security guards was not done in the course of their employment but was an independent frolic of their own.'

Sprod appealed the decision.


The Court of Appeal had regard to the High Court's decision in Deatons Pty Limited v Flew (1949) 79 CLR 370 (generally regarded as the starting point when considering vicarious liability in Australia) and the more recent High Court decision in State of New South Wales v Lepore (2003) 212 CLR 511.

Justice Ipp concluded that it was not possible to discern a generally accepted theory underlying the imposition of liability on an employer in situations such as the present case. However, he stated that there are circumstances where an employer may be vicariously liable for unauthorised acts of an employee, even when those acts are criminal and even when the employer has expressly instructed the employee not to perform those acts.

The Court of Appeal held there were three factors which counted against the decision at first instance
that the assault was not to subdue Sprod but was motivated by the 'blood lust of the security officers involved':

  • There was evidence that, despite Sprod being aggressive and insulting, the security guards did not appear to have lost their tempers.
  • After the security guards returned to the pizza shop, one of them stated that Sprod would not be causing any further trouble that night as he 'just got his head kicked in'.
  • Two of the four guards present kept watch over what was happening in the laneway.

The Court held that this evidence showed the assault was not a spontaneous act triggered by personal animosity and personal vindictiveness. Although there may have been elements of that, the dominant cause of the assault was the security guards' desire to ensure that Sprod would not cause further trouble at the pizza shop.

The Court found that the conduct of the guards was so connected with acts their employer had authorised them to perform that they could be regarded as modes, although highly improper modes, of fulfilling their duties as part of their employment.

Accordingly, PROS was held to be vicariously liable for the acts of its employee security guards.

Elite Protective Personnel v Salmon

The Court of Appeal again dealt with a security firm, Elite Protective Personnel (EPP) held to be vicariously liable for the acts of its employees. However, the primary issue in this case was whether Salmon was contributorily negligent for being drunk and refusing to leave licensed premises when requested to do so.

Salmon was on his buck's night. He was in a nightclub at approximately 5.00am and admitted to being 'merry/pretty sociable, not totally off [his] head'. He admitted to consuming approximately nine drinks in the 12 hour period preceding the incident.

At about 5.00am, a bouncer approached Salmon telling him it was time to go and suggested he might have had a little too much to drink.

Salmon's evidence was that he tried to persuade the bouncer to permit him to stay. Salmon then turned to a companion to say it was time to leave when he felt his right arm being pushed up behind his back. When he complained his arm hurt, the pressure was increased until his elbow was fractured.

At first instance the Court found that Salmon had not acted aggressively towards the security guard and that his attempts to dissuade the bouncer from removing him were an endeavour in persuasion rather than resistance.

The Court found that the security guard held Salmon in a hammer lock with excessive force. The bouncer was held liable for intentional assault. The bouncer's employer was found vicariously liable for the bouncer's actions as well as directly liable because the bouncer did not follow his employer's procedures for removing people from the premises.

Contributory negligence

At first instance and on appeal, the Courts rejected EPP's argument that Salmon contributed to his injuries.

The Court of Appeal stated that a person is guilty of contributory negligence if he exposes himself to a risk of injury which might reasonably have been foreseen and avoided.

The Court found that although Salmon had drunk to a point where his state of inebriation affected his ability to react rationally (that is compliantly) with the bouncer, that was not evidence that he had failed to take reasonable care for his own safety.

Justice Beazley noted that it might be expected that some force would be exerted on a patron who failed to leave premises. However, a reasonable person would not expect even a sober patron to foresee that failing to leave could lead to a bouncer breaking their arm.


These cases demonstrate the difficulty employers in pub and club situations have in dealing with drunk patrons and over zealous security guards. Although there is no general rule that employers of bouncers will be found vicariously liable in all circumstances, the nature of bouncers' duties mean that in many situations, employers will be liable for the actions of their errant employees.

Phillips Fox has changed its name to DLA Phillips Fox because the firm entered into an exclusive alliance with DLA Piper, one of the largest legal services organisations in the world. We will retain our offices in every major commercial centre in Australia and New Zealand, with no operational change to your relationship with the firm. DLA Phillips Fox can now take your business one step further − by connecting you to a global network of legal experience, talent and knowledge.

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.

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