Garrett v Victorian Workcover Authority [2023] VSCA 144 (on JADE).
This was an appeal from a trial judge’s decision dismissing applicant’s claim for damages for psychological injury sustained in the course of employment as armed security guard. His co-security guard for no apparent reason pulled his loaded firearm out of its holster and pointed it directly at the applicant’s head, The applicant claimed psychiatric injuries suffered as a consequence.
The appeal required consideration of whether the trial judge erred by failing to find that the applicant’s employer was vicariously liable for the actions of the co-security guard, and in particular whether the trial 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.
The appeal was dismissed in a single judgment (Beach, T Forrest and Kaye JJA).
At [69] the court observed, referring to the Prince Alfred College decision:
It is important to note that the critical aspect of the test prescribed by the High Court – that the employee’s specific role be the ‘occasion’ for the commission of the tort – was expressly derived from the central passage in the judgment of Dixon J in Deatons. Contrary to the submission by counsel for the respondent, it is evident that the principles outlined by the High Court in Prince Alfred College, are not confined to cases involving sexual assault by an employee.
Against that background the court concluded at [73] – [79]:
The critical question, then, is whether those additional elements — which were not present in the cases of Deatons and Blake — have the effect that the circumstances of this case were such as to render the employer vicariously liable for the conduct of Thrower.
In order to answer that question, it is necessary to return to the principles that underlie the existence of vicarious liability in cases involving the sexual abuse by a person in authority. Those cases illustrate, quite distinctly, what the High Court, in Prince Alfred College, connoted by its reference to the ‘power, authority, trust, control and ability to achieve intimacy’, which, it considered, in such cases are critical factors necessary to a conclusion in favour of vicarious liability. As the High Court noted, it is the existence, nature and degree of those particular facets — and the very specific role entrusted to the wrongdoer — that distinguish cases in which employment has provided the ‘opportunity’ for the commission of the tort, from cases in which employment has constituted the occasion for the commission of that tort.
Quite clearly the sex abuse cases are quintessential instances of circumstances in which vicarious liability may be found to apply. Those cases are, of themselves, sui generis. Nevertheless, as the High Court made clear, it was the specific attributes of the employment relationship — the investing of the wrongdoer with the power, authority and control over the victim, and with the capacity to use those aspects of the relationship to commit a wrong in respect of a victim — that was the basis of the imposition of vicarious liability in those cases. Thus, in Bird, this Court took into account the particular facets of the role performed by the priest, and, in particular, the way in which that role empowered and enabled the priest, by virtue of his office, to develop a trusting and intimate relationship with the victim’s parents and the victim himself, that thus enabled him to commit the acts of sexual abuse.
In the present case, while … the employer did provide to Thrower the loaded firearm, and authorised him to carry it, and, where necessary, to use it in the course of his employment, it could not be concluded that the nature of the relationship between Thrower and the applicant, nor the degree of ‘power or control’ which Thrower might have derived from that relationship, could properly be equated with that which was discussed by the High Court in Prince Alfred College and by this Court in Bird.
Certainly, the role of the applicant and Thrower as armed security guards working together involved issues of trust and mutual reliance. The capacity of each of them to misuse their firearms did, to that extent, provide them with the ability to exercise some power over each other. However, that relationship, and that aspect of power, were of an entirely different quality and degree to the authority, power and control, invested by the employer in the wrongdoer in the sexual abuse cases, and which was integral to the relationship between the wrongdoer and the victim in those cases, in the sense explained by the High Court in Prince Alfred College.
The actions of Thrower were entirely disconnected from the role that he was required to perform as a security guard. His employment as an armed security guard might have enabled him to misuse his firearm to threaten the applicant, but it otherwise lacked any other connection with the duties entrusted to him. As such, the circumstances of this case were completely different, and distinguishable, from cases in which vicarious liability has been imposed where a security guard has exercised excessive zeal or force in performing his or her authorised duties.
For those reasons, while Thrower’s employment with the employer certainly provided the opportunity for him to perform the wrongful act of pointing his weapon at the applicant, on the facts of the case, it could not be concluded that that employment, or the circumstances of it, constituted the ‘occasion’ for the commission by Thrower of that tort, in the sense discussed by Dixon J in Deatons and by the majority in Prince Alfred College.
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