Starks v RSM Security [2004]: Employer Liability for Assault

Starks v RSM Security Pty Ltd & Ors [2004] is an important decision in New South Wales, particularly in the areas of tort law and employer liability.

Ratio Decidendi: Vicarious liability applies even to unauthorised acts if they are closely tied to the employee’s duties. A wrongful act may still be within the “scope of employment” if it occurs as a mode of doing an authorised act (even improperly).

Case Name & Citation: Starks v RSM Security Pty Ltd & Ors [2004] NSWCA 351; [2004] Aust Torts Reports 81-763

Court: Supreme Court of New South Wales – Court of Appeal

Date: 28th September, 2004

Judges: Sheller JA, Beazley JA (lead judgment), Grove J

Areas of Law: Vicarious Liability, Assault, Scope of Employment, Agency, Independent Contractor

Facts – Starks v RSM Security

Byron Starks, a patron at the Bondi Hotel, was assaulted (head-butted) by security guard Eugene Wilson, employed by RSM Security Pty Ltd.

Starks brought proceedings for damages against:

• Mr Wilson (security guard)
• RSM Security Pty Ltd (Wilson’s employer)
• Hotel Bondi Pty Ltd (owner/occupier of the hotel)
• Cyril Maloney (licensee)

The District Court found Wilson liable for the assault and awarded $97,017 to Starks as damages. The claims against the employer, hotel, and licensee were dismissed. The judge found the assault was not within the scope of Wilson’s employment and the hotel/licensee had no direct control or liability.

Starks appealed.

Court of Appeal Decision

The appeal was allowed in part (RSM Security held liable) and dismissed in part (hotel and licensee not liable).

1. Employer Liability:

RSM Security Pty Ltd was held vicariously liable for Wilson’s actions.

The Court found that Wilson was acting in the course of his duties when he assaulted Starks, even though the act was unauthorised and violent.

Assault was “closely connected” to his duty of removing patrons. Therefore, it was not a personal frolic, but an improper mode of performing his role.

2. Hotel & Licensee Liability:

The Court emphasized that RSM Security was an independent contractor, not under the hotel’s direct control.

There was no evidence of uniforms, instructions, or representational authority that would show the guard was acting as the hotel’s “face” to the public.

Some of the important cases cited by the Court included Hollis v Vabu Pty Ltd [2001] HCA 44, State of NSW v Lepore (2003) 212 CLR 511, and Deatons Pty Ltd v Flew [1949] HCA 60.

You may refer to the full case here:

https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCA/2004/351.html

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