Lamble v Howl at the Moon Broadbeach Pty Ltd [2013] QSC 244

Supreme Court of Queensland – Douglas J (9 September 2013)

Introduction

In this case, Lamble v Howl at the Moon Broadbeach Pty Ltd,1 the plaintiff is Andrew Jon
Lamble and the defendant is Howl at the Moon Broadbeach. The main legal issue discussed is
whether employers are vicariously liable in negligence when employees commit an intentional
tort. This case note is going to primarily focus on the issue of vicarious liability.

Facts

The plaintiff, Andrew Lamble, was a patron at the defendant employer’s bar, when he was
assaulted by the defendant’s employee, Anthony Cerantonio, because he mistakenly thought
the plaintiff was involved in an attack on the bar’s co-manager and Cerantonio’s uncle, Mario
Zulli. The plaintiff suffered brain injury and other related injuries as a result of the assault.

Plaintiff sought damages for a direct breach of duty and vicarious liability in negligence on the
part of the defendant.

Held

Douglas J held that the defendant should be held vicariously liable in negligence for
Cerantonio’s actions towards the plaintiff. The defendant was not found to be in breach of duty
to the plaintiff. The damages were assessed to be $1,399,000.00

Reasoning

Douglas J followed the approach in The Laws of Australia as saying that vicarious liability
cannot be found where the employee acted to ‘gratify private spite or achieve revenge’.2

Douglas J held that Cerantonio only acted to rescue Zulli hence was not acting out of private
spite or revenge.

1
Lamble v Howl at the Moon Broadbeach Pty Ltd [2013] QSC 244.
2
Westlaw AU, The Laws of Australia, (at 1 March 2015) 33 Torts, ‘4 Vicarious Liability’ [33.6.650]

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In order to make out vicarious liability Douglas J followed two elements laid out by Gummow
and Hayne JJ in NSW v Lepore (2003) 212 CLR 511. The judges said:3

First, vicarious liability may exist if the wrongful act is done in intended pursuit of the employer's
interests or in intended performance of the contract of employment. Secondly, vicarious liability may be
imposed where the wrongful act is done in ostensible pursuit of the employer's business or in the apparent
execution of authority which the employer holds out the employee as having.

Relying on these principles Douglas J found that even though the employees were instructed
to leave security matters to the security staff, by doing just that in the absence of security staff,
Zulli demonstrated that such conduct was within the intended performance of employment.4
The judge further went on to say that Cerantonio was acting in the defendant’s interest by
protecting one of its managers and maintaining order outside its premises.5

Douglas J also relied on the decision of Ryan v Ann Street Holdings Pty Ltd6 where it was held
that in cases where the employer may be held vicariously liable for the intentional misconduct
of their employee, ‘[a]ll depends on the closeness of the connection between the duties which,
in broad terms, the employee was engaged to perform and his wrongdoing.’7

Finding that the conduct satisfied the elements set in NSW v Lepore by Gummow and Hayne
JJ, the judge held that there was sufficient closeness between the assault and Cerantonio’s
employment for the defendant to be held vicariously liable.8

The defendant was not found in breach of duty because there was little to nothing Zulli could
have done at the time of the assault to prevent it.9

Analysis

Vicarious Liability in Common Law

This case is important as it deals primarily with the contentious issue of employer’s liability as
to their employee’s conduct. In common law this liability is determined using the principles of

3
NSW v Lepore (2003) 212 CLR 511, 591–92 [231].
4
Lamble v Howl at the Moon Broadbeach Pty Ltd [2013] QSC 244, 18 [70].
5
Ibid 18-19 [71-72].
6
Ryan v Ann Street Holdings Pty Ltd [2006] 2 Qd R 486.
7
Ibid 217 [20].
8
Lamble v Howl at the Moon Broadbeach Pty Ltd [2013] QSC 244, 19 [72].
9
Ibid 20 [76]

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vicarious liability where the employer can be under strict liability to any person injured by an
employee acting in the course of their employment.10

Vicarious liability is established when the employee’s misconduct falls within the scope or
course of employment. This is traditionally determined using the Salmond test where the act
falls within the scope of the employment if it is an authorised act or if unauthorised, the act is
so closely connected to the employment that it may be regarded as a mode of achieving what
has been authorised.11 Douglas J speaks of this test when discussing vicarious liability where
the act is unauthorised.12

Another test Douglas J refers to in his judgement is the “connection” test as stated by Williams
JA.13 The connection test is used to determine whether the Salmond test has been met and it
says that the closer the wrongful conduct is to the employment the more likely that vicarious
liability will be found.14 The Supreme Court of Canada in Bazley v Curry [1999] 2 SCR 534
found in regards to the “connection” that it must be so close that it can be said that the
employment brought about the risk of the wrong.15

In discussing the judgement of Dixon J in Deatons v Flew,16 Gummow and Hayne JJ listed two
more elements that might be used to identify vicarious liability in regards to an intentional tort
by asking whether (1) the conduct was done in the intended performance or the furtherance of
the employee’s interest or (2) the conduct was done in the apparent execution of employment
or the authority the employee is held to have.17

Despite the courts’ agreement on the various tests, a major criticism for the use of the vicarious
liability principles is the differences that arise in the application of the tests. Just on the
application of the connection test in cases where employers are liable for the paedophilic
conduct of their employees, there were significant differences between the judges’ conclusions
in the Supreme Court of Canada in Jacobi v Griffıths [1999] 2 SCR 570, 54 the House of Lords

10
Christine Beuermann, ‘Tort law in the employment relationship: A response to the potential abuse of an
employer's authority’ (2014) 21 TLJ 169, 10
11
R F V Heuston and R A Buckley, Salmond and Heuston on the Law of Torts (Sweet & Maxwell London, 19th
ed, 1987) 521-2.
12
Lamble v Howl at the Moon Broadbeach Pty Ltd [2013] QSC 244, 16 [66].
13
Ibid 17 [68].
14
Bazley v Curry [1999] 2 SCR 534; New South Wales v Lepore (2003) 212 CLR 511; Ryan v Ann Street Holdings
Pty Ltd [2006] 2 Qd R 486.
15
Bazley v Curry [1999] 2 SCR 534, 557 [37].
16
Deatons v Flew (1949) 79 CLR 370, 381.
17
NSW v Lepore (2003) 212 CLR 511, 591–92 [231].

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in the United Kingdom in Lister v Hesley Hall Ltd [2001] UKHL 22, 55 and the High Court of
Australia in New South Wales v Lepore (2003) 212 CLR 511. These discrepancies in the
judges’ analysis speak to the level of uncertainty in this area of torts law.

This prevailing uncertainty; lack of a unified test; and other valid criticisms bring into question
the practicality of vicarious liability in modern torts law. Developments in torts law have seen
strict liability torts absorbed by fault-based negligence, and there are calls to do the same for
vicarious liability.18 Having said that the fact that on appeal the Queensland Court of Appeal
upheld and approved the application of these principles in this case, proves the courts are still
reluctant in dismissing this principle.19

Application of the principles

Douglas J found the defendant vicariously liable primarily on the basis that the facts satisfied
both of the elements identified by Gummow and Hayne JJ in NSW v Lepore.20 The judge found
the first element satisfied by the facts that it was in the employers’ interest to protect the
manager and to maintain order outside the bar.21 For the second element, the judge found the
misconduct was in the course of employment based on his analysis that the instructions to not
engage in security matters did not cover all contingencies, such as the one that they found
themselves in without any security guards available. As such, Douglas J held, the employees
were entitled to follow Zulli’s example when he himself escorted the unruly patrons out in the
absence of the security guards.22 The judgement was not clear whether this meant that the act
was considered an authorised act or if it was to be taken as an unauthorised act closely
connected with employment. He offered that Zulli’s conduct meant that the act could be
considered authorised,23 but also stated that it was sufficiently close to the employment, even
if it was deemed unauthorised, for the defendant to still be held vicariously liable.24

On appeal to the Queensland Court of Appeal Muir JA, with Ann Lyons J and Holmes JA
agreeing, approved the decision at trial and proceeded to clarify and provide better legal context
to the judgement at trial. On the first element Muir JA expounded that at the time of the assault

18
Anthony Gray, ‘Why vicarious liability must be abandoned’ (2011) 39 Australian Business Law Review 67, 78
19
Howl at the Moon Broadbeach Pty Ltd v Lamble [2015] 2 Qd R 11
20
NSW v Lepore (2003) 212 CLR 511, 591–92 [231].
21
Lamble v Howl at the Moon Broadbeach Pty Ltd [2013] QSC 244, 18-9 [71-2].
22
Ibid 18 [70].
23
Ibid
24
Ibid 19 [72]

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Cerantonio was faced with two choices; either to attempt to protect Zulli himself or go alert a
security guard.25 Had Cerantonio chosen the latter option, there was a possibility that Zulli
would have been seriously injured.26 From the evidence, it was in the interest of the defendant
that Zulli not be injured27 hence regardless of why Cerantonio engaged in the misconduct, the
employer stood to benefit from it. In regards to the second element Muir JA went so far as to
say that the misconduct had implied authority. He cited Poland v John Parr & Sons28 to suggest
that employees have implied authority in emergencies to take the necessary actions in
protecting their master and the master’s property.29

Muir J also referred to the principle of ‘enterprise risk’ as found in Hollis v Vabu Pty Ltd30
which holds a business vicariously liable for a tortious act arising from risk that is characteristic
of the business’ enterprise.31 Muir JA found that, ‘the service of alcohol late at night gave rise
to the risk that… bar staff may be faced with situations in which they needed to act in their
own defence or in defence of other employees.’32

25
Howl at the Moon Broadbeach Pty Ltd v Lamble [2015] 2 Qd R 11, 14 [30].
26
Ibid 15 [61-2].
27
Ibid.
28
Poland v John Parr & Sons [1927] 1 KB 236.
29
Ibid 244-45.
30
Hollis v Vabu Pty Ltd (2001) 207 CLR 21.
31
Ibid 40 [42].
32
Howl at the Moon Broadbeach Pty Ltd v Lamble [2015] 2 Qd R 11, 15 [35].

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Bibliography

A Articles/Books/Reports

Beuermann, Christine, ‘Tort law in the employment relationship: A response to the potential
abuse of an employer's authority’ (2014) 21 Torts Law Journal 169

R F V Heuston and R A Buckley, Salmond and Heuston on the Law of Torts (Sweet &
Maxwell London, 19th ed, 1987) 521-2

Anthony Gray, ‘Why vicarious liability must be abandoned’ (2011) 39 Australian Business
Law Review 67

Westlaw AU, The Laws of Australia,

Teague, Joshua, ‘Vicarious liability: A comparative review of the common law after Ffrench’
(2008) 16 Tort Law Review 39

Glofcheski, Rick, ‘A frolic in the law of tort: Expanding the scope of employers’ vicarious
liability’ (2004) 12 Tort Law Review 18

B Cases

Lamble v Howl at the Moon Broadbeach Pty Ltd [2013] QSC 244

NSW v Lepore (2003) 212 CLR 511

Ryan v Ann Street Holdings Pty Ltd [2006] 2 Qd R 486

Bazley v Curry [1999] 2 SCR 534

Deatons v Flew (1949) 79 CLR 370

Howl at the Moon Broadbeach Pty Ltd v Lamble [2015] 2 Qd R 11

Poland v John Parr & Sons [1927] 1 KB 236

Hollis v Vabu Pty Ltd (2001) 207 CLR 21