Examining Negligence and Vicarious Liability in a Security Guard Incident: A Case Analysis

A recent appeal case stemming from a decision made by HH Tsalamandris J (‘HH’) in the Supreme Court of Victoria has brought the intricacies and complexities of negligence and vicarious liability to the forefront. The case, Garrett v VWA [2023] VSCA 144, involves an incident between two armed security guards and their employer, raising questions about proper screening, training, and the responsibility of employers for the actions of their employees.

The grounds of the appeal centred around whether the judge erred by failing to find that the applicant’s employer was vicariously liable for the actions of the co-security guard; and whether the judge erred in failing to conclude that the employment provided the ‘occasion’ and not merely the ‘opportunity’ for the commission of the wrongful act of the co-security guard.

In this summary, we delve into the details of the case and explore the factors considered by the court in hearing the appeal.

The facts of the case

Two armed security guards employed by Staff Factory, were transporting a copper cylinder from the Royal Australian Mint to Kirk Group's factory for servicing. While waiting outside the Kirk factory, the plaintiff's colleague inexplicably pointed his loaded weapon at the plaintiff's head, causing the plaintiff to suffer psychological injury. The plaintiff argued that the employer was negligent in failing to properly screen the defendant and that they were vicariously liable for his actions.

Evidence was presented regarding the plaintiff's own training and qualifications for firearm licensing, as well as criticism of the employer's screening process and training from an expert witness. The employer's director acknowledged shortcomings in the training and induction process. HH found no evidence of fatigue or boredom as factors and determined that there was no negligence or breach of duty by the employer.

Regarding vicarious liability, HH considered the lack of trust, authority, control, or power between the colleague and the plaintiff, as well as the absence of a power imbalance or implicit condoning of the colleague's conduct by the employer. Additionally, the duration of time that the guards were waiting at the factory was quite short, reducing the likelihood of boredom playing a role.

Negligence allegations

During the trial, evidence was provided of the extensive training and qualifications for firearm licensing, including rigorous procedures involving applications to Victoria Police. It was also explained that the interview and broader recruitment process was comprehensive, which emphasised the company's zero-tolerance policy towards inappropriate behaviour.

However, an expert witness at the trial criticised the employer's screening process and training, specifically noting the lack of specific instructions on handling and pointing weapons. In cross-examination, the director and owner of the defendant admitted that the training and induction process fell short of the initially claimed duration of 2 days.

Vicarious liability considerations

Vicarious liability typically arises in an employer-employee relationship, where an employer may be held liable for the actions of their employees performed within the scope of their employment. This principle recognises that employers exercise control over their employees and should bear responsibility for any harm caused by their actions in the course of their work.

In the case, while examining the issue of vicarious liability, the court assessed several factors. Firstly, they determined that there was no position of trust, authority, control, or power held by the colleague over the plaintiff. Furthermore, there was no power imbalance between the two individuals. The court also observed that the act committed by the defendant was not carried out in furtherance of the employer's interests and was neither implicitly condoned nor encouraged by the employer. Lastly, the court noted that unlike a previous case where boredom played a significant role, the wait time in this particular incident was relatively short (1-2 hours), minimising the likelihood of such a factor influencing the colleague's behaviour.

Court's findings

Based on the evidence presented, the court upheld the original decision that there was no negligence or breach of duty on the part of the employer. The absence of evidence pointing to fatigue or boredom, coupled with the colleague's termination and subsequent conviction, contributed to this decision. Regarding vicarious liability, the court carefully examined the circumstances and concluded that the aforementioned factors did not establish a basis for holding the employer responsible for the defendant’s actions.

Implications and lessons learned

This case highlights the importance of thorough screening processes and comprehensive training when employing individuals in sensitive roles, such as armed security guards. It highlights that whilst often employers will be held liable for the actions of their employees, there are exceptions.

When you have suffered an injury in the workplace, the process of making a claim can often be stressful and complicated. Any injury which is sustained during the 'course of your employment' is considered to be a workplace injury. Our team of injury lawyers will work with you to ease the burden of making a WorkCover claim and help you on the road to recovery.

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