Employer not liable for drunken employee's assault on another employee

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Employer not liable for drunken employee's assault on another employee

The NSW Court of Appeal has ruled that an employer is not liable to pay compensation to an employee after she was assaulted by another employee who was intoxicated.

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The NSW Court of Appeal has ruled that an employer is not liable to pay compensation to an employee after she was assaulted by another employee who was intoxicated.
 
The limitations on the principle of vicarious liability, whereby employers are liable for the actions of their employees in the course of employment, was in question.
 
Background
 
The employee was assaulted on the premises of the employer's jockey club by another of the owner's employees.
 
The drunken employee was employed by the owner as a cleaner. He had been using a machine to suck up rubbish and was clearing bottles and other rubbish nearby. The employee said that without provocation, he grabbed her from behind around her neck and held her in a strong grip for between five and ten minutes. 
 
He then pushed her and her chair backwards causing her to hit her head on the concrete.
 
Findings
 
Justice Sheller said that the assault on the woman was sudden and unexpected. He further ruled that the club was sufficiently in control of its employee at the time of the incident and had no reason to suspect that he was a threat to the woman. The club was therefore not liable for his conduct.
 
Further, the Court of Appeal confirmed that the vicarious liability of an employer extends only to situations where the act in question can be said to be within the scope of the employee's authority, where it falls within a mode of doing the authorised work, where it was an act the employee was employed to perform or where it was an act that was incidental to the employee's employment.
 
Justice Sheller noted:
‘In principle, the situation is no different from a case where a member of the public lawfully on the premises and having consumed a considerable amount of alcohol suddenly and unexpectedly assaults another person on the premises. In such a situation, in order to recover in negligence the person assaulted must rely upon a general duty owed by the respondent to persons lawfully on the premises to take reasonable care to protect them from criminal activities such as assault…’.
The Court found that the incident was criminal in nature and it was not reasonable to require an employer to pay compensation for criminal acts by employees when there had been no indication that such events were likely to occur.
 
An alternative argument that the jockey club was liable for the incident as the occupier of the premises where the assault occurred failed on similar grounds.
 
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