' Vicarious Liability Of An Employer For An Intentional Tort By Its Employee - S 3B (1) CLA' : Zorom Enterprises Pty Ltd -V- Zabow & Ors [2007] NSWCA 106

Publish Date: May 4, 2007

Zorom Enterprises Pty Limited -v- Zabow & Ors

[2007] NSWCA 106

NSW Court of Appeal

McColl, Basten and Campbell JJA

In Brief

The exclusion of intentional torts from the operation of the Civil Liability Act 2002 extends to an employer's vicarious liability for the intentional torts of its employees.

An employer will be vicariously liable for the unauthorised acts of its employees, if they are done for the pursuit of the employer's interest, the intended performance of the contract of employment or in exercise of the authority given to the employee by the employer.

Exemplary damages are available against a vicariously liable defendant.

Where a plaintiff's employer would have made superannuation contributions to an accumulation fund, the widely used method of assessing these contributions as an income stream discounted by the appropriate discount rate, is an appropriate means of estimating damages for future loss of superannuation benefits. However, this is not the only acceptable method of making this assessment.

Although future economic loss may be assessed as a "buffer" when difficult to assess with precision, a judge need not assess future economic loss on this basis where there is an adequate evidentiary basis on which to make a mathematical assessment.

Facts

The plaintiff was one of a group of friends attending a party at a hotel in Clovelly. Two of his friends were evicted by security personnel and the plaintiff joined them outside the hotel. One of the friends, an asthmatic, suffered an asthma attack. He returned to the hotel, seeking a puffer.

Security personnel disbelieved the friend's asthma claim. The situation deteriorated and one of the security personnel assaulted some of the plaintiff's friends. When the plaintiff asked why the security guard was assaulting his friend, the guard struck him, causing him to strike his head on a pole or the back of a motor vehicle.

The plaintiff had not been aggressive and the security guard's punch was unexpected and thrown without warning.

Decision at Trial

The plaintiff sued the licensee and occupier of the hotel and two employers of the security personnel.

The matter came on to trial in the District Court before Kelerman DCJ. His Honour found that the employers of the security guards were vicariously liable for the assault on the Plaintiff.

The trial judge awarded aggravated and exemplary damages against the employers.

He assessed future economic loss on the basis of the comparable earnings of an individual in similar...