Lawyers, guns and money: vicarious liability for criminal or wrongful acts

By Matt McDonald

The Victorian Court of Appeal has upheld a finding that an employer was not vicariously liable for psychiatric injuries suffered by its employee as a result of the criminal act of one of his co-workers.

First instance

In May we reported on the first instance judgment of the Victorian Supreme Court.

The Plaintiff was employed as an armed security guard. He was stationed in his armoured van on a job when his co-worker, perhaps by reason of a twisted sense of humour, unholstered his weapon and held it to the Plaintiff’s head. Consequentially, the Plaintiff suffered psychiatric injuries.

The Court ultimately held that the employer was not vicariously liable, as the co-worker’s actions were not done in connection with his employment duties. The Court applied the principle that there must be an ability to achieve intimacy and a relationship of trust between the wrongdoer and Plaintiff in order to establish vicarious liability against the wrongdoer’s employer in such cases.


The Plaintiff’s appeal was dismissed. In upholding the decision of the trial judge, the Court of Appeal noted that vicarious liability for the criminal acts of employees will only arise in exceptional cases where the employment provided not just the opportunity for the wrongdoing, but the actual occasion (applying Prince Alfred College Inc v ADC (2016) 258 CLR 134).

In considering whether the employment provided the actual occasion for the wrongdoing, Courts must consider the authority, power, trust and level of control between the parties. In this case, the Court of Appeal considered that the relationship between the Plaintiff and his co-worker lacked the requisite level of power, trust and control.

Garrett v Victorian Workcover Authority [2023] VSCA 114

Further Developments in vicarious liability?

The High Court will soon hear the appeal to Schokman v CCIG Investments Pty Ltd [2022] QCA 38. In this matter, the Plaintiff worked and shared staff accommodation with a co-worker at Daydream Island. The Plaintiff, Mr Schokman was the direct supervisor of his co-worker and roommate, Mr Hewett.

After returning home drunk one night, Mr Hewett awoke Mr Schokman by accidentally urinating in his face, aggravating Mr Schokman’s underlying cataplexy.

The Queensland Court of Appeal held that the employer should be vicariously liable for Mr Hewett’s actions, as the employment contract required him to stay in accommodation on the island. As Mr Hewett occupied the room as an employee, his employer was vicariously liable for his actions.

This finding of vicarious liability did not rest on the factors outlined in Prince Alfred College. If the High Court upholds the Queensland Court of Appeal’s judgment, it will potentially broaden the scope of employers’ vicarious liability.

This article was written with the assistance of Lloyd Miller, Law Graduate.


Matt McDonald

Matt is an experienced insurance lawyer acting for leading insurers, specialising in public and product liability.

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