Vicarious liability in the Australian nightclub context

James Tadros

The Australian High Court’s 6:1 decision in New South Wales v Lepore has set the law on whether an employee’s unauthorised act will be within his scope of employment to hold the employer vicariously liable. However, its failure to discern a ratio and radical alteration of the scope of employment test has significantly widened the test and created unprecedented ambiguity. This thesis shall examine how the complications engendered within Lepore have impacted the security industry. In every case to date, nightclubs and security guard agencies have faced vicarious liability for the unlawful overzealous assaults of their bouncer’s towards patrons. Employers have no guidance to adequately prevent or defend against this liability. This is unjust because a faultless employer may find itself vicariously liable for an unauthorised act by an employee, and be forced to pay significant sums of damages and other potential indirect consequences of liability. These problems are perhaps a result of the judiciary’s quasi-legislative activity throughout the formulation of the scope of employment test that has given birth to the plaintiff-friendly tests we have today. As the current scope of employment test is unlikely to be reformed by the High Court within the near future, the Author has proposed legislative reform that may cure these problems within the nightclub and entertainment context.

Vicarious liability in the Australian nightclub context

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