By Stuart Eustice, Partner & Matthew Caruana, Lawyer

Mr Lance Garrett (Plaintiff) and his co-worker, Mr Corey Thrower were employed by The Staff Factory Pty Ltd (Defendant) as armed security guards. On 28 June 2014, the Plaintiff and Mr Thrower escorted currency printing equipment from the Royal Australian Mint (Mint) to a designated location. It was at this location where for no known reason, Mr Thrower pointed a gun at the Plaintiff’s head (incident). The Plaintiff alleged sustaining psychological/psychiatric injuries as a result and sued his employer.

Access to damages was of course conditional upon establishing liability (negligence) against his employer. Tsalamandris J, in the Supreme Court of Victoria, decided that an unlawful act by a fellow employee did not constitute negligence on the part of the employer nor was the employer vicariously liable for the employee. Therefore, the Plaintiff’s claim failed.

Plaintiff’s Evidence

The Plaintiff at the beginning of his shift was required to collect a gun from the Defendant’s premises. On the day of the incident, the Plaintiff and Mr Thrower were allocated loaded guns. They subsequently drove from the Defendant’s premises to the Mint and then escorted a Mint transport vehicle to a designated location. Once at the designated location, they waited for printing equipment to be serviced.

The Plaintiff stated that he was sitting in the car and Mr Thrower was smoking a cigarette on his left-hand side. The Plaintiff subsequently turned around to find that Mr Thrower was pointing a gun at the Plaintiff’s face. The Plaintiff described being frozen for 10 to 15 seconds before Mr Thrower put his gun back in his holster. The incident was reported to the Defendant’s management and at the local police station.

Expert Evidence

The Plaintiff relied on expert opinion from Dr Tony Zalewski, about the safe handling of a firearm and the necessary qualifications and compulsory pre-employment formal training. Dr Zalewski opined that the Defendant should have offered informal training and instruction for this workplace, which was more aligned to on-the-job activity. Furthermore, in his opinion, a risk assessment was required to look at the relevant elements of the workplace and environment, to minimise the risk of injury in the workplace. Dr Zalewski was critical of the Defendant’s firearm policy given it failed to include a part that contained drawing/holstering a firearm.

Defendant’s Evidence

Mr Mark Hollis was director and owner of the Defendant at the time. Mr Hollis gave evidence about the recruitment process. Their recruiting processes included a review of the required security clearances/certificates of candidates and employees were handed an operating manual at the commencement of employment.

Relevantly the operating manual specified that an induction course is given over a two-day period. Mr Hollis’ evidence confirmed the induction occurred over 30 mins to 1 hour, which involved showing the new employees around and outlining the company’s expectations. HE otherwise had regular conversations with staff about gun safety including that a gun, being a lethal weapon, was only to be used in self-defence and to not withdraw a firearm unless there is justification for doing so. He also stated that there was signage about gun safety handling procedures on the walls of the Defendant’s premises and gun safes.

Mr Hollis stated that upon hearing about the incident, Mr Thrower was stood down, and his employment was subsequently terminated.

Claim in negligence/vicarious liability

The particulars of negligence relied on the Plaintiff for negligence and vicarious liability included:

• Failing to carry out the necessary investigations or background checks of Mr Thrower before he was employed as an armed guard to ensure he was a fit and proper person to be so employed;
• Failing to instruct, train or induct Mr Thrower in relation to the inappropriate use of firearms; and
• Permitting Mr Thrower to work on the day of the gun incident when it knew or should have known that he was fatigued and potentially vulnerable to being stressed and behaving inappropriately.

The Defendant accepted a non-delegable duty of care was owed to the Plaintiff to take reasonable care to prescribe, implement, and maintain a safe workplace and system of work. However, the Defendant stated that the Plaintiff’s claim should be confined to the specific risk of Mr Thrower’s conduct (being a foreseeable risk of the illegal threatening use of a firearm). It was also not vicariously liable, expressly stating that:

• Mr Thrower was not acting within the scope of his employment when he drew his gun;
• Mr Thrower’s actions were not in the furtherance of his employment or his employer’s interests;
• Mr Thrower committed an illegal and unauthorised act; and
• Mr Thrower was not assigned any special role or position of dominance over the plaintiff.

Analysis of claim – Employer’s negligence

Her Honour stated “an employer has a non-delegable duty to establish, maintain, and enforce a safe system of work so as to avoid exposing its employees to unnecessary risk of injury. An employer is only required to safeguard against risks which are reasonably foreseeable, not risks which are far-fetched or fanciful. The standard of care expected of a reasonable employer requires the employer to take account of the possibility of inadvertent or negligent conduct on the part of others.…An employer must also take into account the possibility of thoughtlessness and carelessness.

To determine if an employer has breached its duty of care, it is necessary to identify the relevant risk of injury against which the employer was alleged to have failed to take adequate steps to protect its employee from. In performing this task, the precise circumstances in which the injury was sustained need not have been reasonably foreseen, rather it is sufficient that the nature of the circumstances in which the harm was incurred was reasonably foreseeable.”

Her Honour continued “given the specific training armed guards must successfully complete, together with a compulsory qualification verified by a statutory authority, and an expectation of common sense, I do not consider it reasonably foreseeable that an armed security guard would point a loaded gun at a co-worker without justification. I consider it was reasonable for the defendant to expect that its trained and certified armed security guards would follow the basic, yet fundamental principles outlined above, and not act in the manner that Mr Thrower did. Further, I do not consider such conduct can be categorised as thoughtless, careless, or inadvertent, of which the defendant ought to have foreseen.

For those reasons, I am not satisfied that this was a foreseeable risk, which the defendant was required to take measures to protect against.

Analysis of claim – Vicarious liability

Simply put, vicarious liability refers to employers being liable for the acts committed by their employees in the course of employment. Her Honour referred to a variety of cases related to vicarious liability, explained that “I consider Mr Thrower’s act of pulling a gun on his co-worker can only be categorised as an act of extreme and unnecessary violence…The fact that the defendant provided the gun to Mr Thrower and authorised him to use it in certain circumstances may be described as ‘extraordinary features’ of employment but, in my view, for the reasons above, this is not enough to justify a finding of vicarious liability.

The opportunity for the act, and the form it took, may have arisen from the fact that Mr Thrower was an armed guard employed by the defendant, but an act of this kind, generated wholly within the confines of Mr Thrower’s mind, was not within the course or scope of his employment. Physical violence towards a fellow employee was not a ‘natural extension’ of his duties, but rather, a gratuitous act unconnected with Mr Thrower’s employment.

What can we takeaway from this decision?

There is a large body of law on ‘illegal/criminal activities’ all stemming from the decision of Modbury Triangle. In the statutory compensation arena this injury would no doubt have been compensable, though at common law it is not straight forward – the scope of duty and foreseeability of risk are different in each circumstance.

It is this point alone that is the key takeaway. The more unpalatable the conduct the greater the prospect of such incident not falling within the scope of duty (of an employer or occupier).