Vicarious Liability of Employers and Acts of ‘Personal Resentment’ in Common Law Claims for Damages

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By Matthew Skelly, Senior Associate & Alec Sheldon, Paralegal

We have had a recent increase in cases involving the intentional torts of assault and battery. Though these types of claims are common in the security industry and in respect to the police, recent cases have involved assaults committed by employed directors and labour hire employees whilst under the control of a host employer.

Vicarious Liability

In NSW section 7 of the Law Reform (Vicarious Liability) Act 1983 (NSW) establishes, to the extent a servant’s act or omission is a breach of the servant’s duty of care, performed in the course of the servant’s service to his/her master, the master will be held vicariously liable for that act or omission. Though NSW has the law codified this principle exists at common law.

The most common relationship where vicarious liability may arise is that of an employer/employee relationship.

What is the scope of a master’s liability for the actions of its servants?

Since the High Court decision in Deatons Pty Ltd v Flew (1949) 79 CLR 370 (‘Flew’), an employer will generally not be vicariously liable for an assault, battery or other act of violence by one of its employees, save for certain jobs where using force is needed to fulfil their employment duties.

In Flew, whilst working in her capacity as a barmaid, an employee threw a glass at a patron whilst behind the bar, blinding him. The High Court of Australia found the employer was not liable for the barmaid’s actions, despite her being behind the bar and “serving” a drink at the time.  Chief Justice Latham stated, vicarious liability arises when the servant’s actions:

  1. Were ‘an act which he was employed actually to perform’; or
  2. Where the act by the employee was incidental or connected with their employment.

In Flew Latham CJ accepted acts of ‘personal resentment’, which assault and battery  generally constitutes, fell outside the acts and obligations of employment to give rise to vicarious liability stating:

‘the 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. Upon the evidence given for the defendant the act was an act of personal resentment and was not in any way performed as on behalf of the employer’

This principles in Flew creates a number of plausible scenarios where employers could be vicariously liable for an assault and battery by one of its employees. Those being when physical restraint and crowd control is an element of the employee’s role, such as employed security guards and police officers.

In Sandstone DMC Pty Limited v Trajkovski & Anor [2006] NSWCA 205, a nightclub was held vicariously liable for an assault committed by its security guard who had violently escorted and then fought a patron. The NSW Court of Appeal concluded these acts were done by the employee ‘in intended pursuit of the employer’s interests’ to keep a disorderly person out of the nightclub.

Vicarious Liability For Criminal Acts

As an extension of the principles in Flew, the High Court of Australia (in the context of sexual assault) has expanded vicarious liability for the criminal acts of an employee, to require the consideration of the following:

  1. Any special role that the employer has assigned to the employee;
  2. The position in which the employee is placed in relation to the victim; and
  3. The particular features that may be taken into account include authority, power, trust and control.

In circumstances where the employee, by virtue of their employment, is in a position of power, or has special access to the party which has suffered the injury or loss (such as a teacher) a Court is open to a Court to find a master vicariously liable for the harm inflicted.


The case law on the point of vicarious liability for assault and battery is more restricted than in negligence, as these acts usually have a criminal element to them.

A common law assault and/or battery by an employee of a third party in the course of employment will not automatically result in the liability of employer, unless the assault was directed by the employer or authorised by virtue of the employee’s role.

Deatons Pty Ltd v Flew (1949) 79 CLR 370
DMC Pty Limited v Trajkovski & Anor [2006] NSWCA 205
New South Wales v Lepore [2003] HCA 4

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    TPD: Unreasonable Insurer Decision: Folmer v VicSuper Pty Ltd & Anor [2018] NSWSC 1503