In the recent decision of Blake v JR Perry Nominees Pty Ltd  VSCA 122 the Victorian Court of Appeal considered when an employer will be vicariously liable for their employee’s actions. The majority held that an employer, whose worker sustained a back injury after a colleague played a prank on him, was not vicariously liable in negligence. The case provides a useful summary of the authorities in this area and ultimately finds that an employer will not be liable for incidents occurring beyond its reasonable control.
The appellant, Mr Blake, was employed by the respondent, JR Perry Nominees, as a truck driver transporting fuel. JR Perry had a contract to refuel a survey vessel, due to dock at the Portland wharf, on 16 October 2001. Mr Blake, together with two other truck drivers, Mr White and Mr Jones, were instructed to fill their tankers at the depot, transport it to the wharf and wait for the vessel to dock.
Mr Blake and his colleagues arrived at the wharf on the evening of the 15 October. They had been instructed that the vessel was scheduled to dock at around 9am the following morning. However, the arrival of the vessel was ultimately delayed until the late afternoon or evening on 16 October. The drivers were not given any instructions about what they were to do while waiting at the wharf, although they were told to “just be there”.
At approximately 2pm, Mr Blake and his colleague Mr White were both standing on the wharf looking out to sea when suddenly Mr Jones struck Mr Blake hard to the back of his knees causing them to give way. Mr Blake subsequently developed a severe back injury as a result of the incident. It was contended by the appellant that Mr Jones’ employer was vicariously liable for his actions in these circumstances, as there was a sufficient connection between Jones’ actions and his employment.
Before turning to the relevant case law the Court was first asked to make three factual findings:
- That Mr Jones’ actions were the product of boredom whilst waiting on the wharf
- That Mr Jones’ actions did not constitute an assault, contrary to criminal law but rather should be looked at as mere skylarking of a playful nature
- That JR Perry took no disciplinary action in relation to the behaviour.
In relation to the first contention, the court held that there was no evidence to draw an inference that Mr Jones’ actions were not some playful lark bred of boredom but rather appeared to be a sharp and calculated attack upon Mr Blake.
The court also held that even though Mr Jones’ actions constituted a prank as demonstrated by Mr Jones’ immediate contrition, it was nevertheless a deliberate and intentional application of force which produced an injury. Mr Jones’ actions therefore constituted an assault and battery at common law and common assault within the meaning of s23 of the Summary Offences Act. The court also held that it did not have enough evidence to conclude one way or the other whether disciplinary action was taken.
The court then conducted a detailed consideration of the relevant case law, in particular focusing on the decisions of Deatons Pty Ltd v Flew and State of New South Wales v Lepore.
In Deatons a barmaid threw a glass at a patron causing damage to the patron’s eye. Whilst each judge used different wording they agreed that the action of the barmaid was an unlawful and unprovoked act not connected with the performance of the employee’s duties and therefore did not fall within the scope of employment to render the employer vicariously liable.
Once again in Lepore the judges each used different reasoning, with Ffrench v Sestili summarising the key points of the judgment as “the fact that the employee had intentionally engaged in criminal conduct or other breach of the law may not suffice to deny vicarious liability. The second proposition is that the fact that conduct in which the employee was engaged was contrary to instructions given by the employer may not suffice to deny vicarious liability.”
After considering these cases the Victorian Court of Appeal in this case concluded that an employer will be liable for the actions of an employee committed in the course of employment where those actions are:
- expressly authorised by an employer
- impliedly authorised by an employer
- done in the supposed furtherance of the employer’s interests, or
- so closely connected with the duties and responsibilities of an employee as to be regarded as within the scope of employment.
It was held that the action of Mr Jones in hitting Mr Blake did not fall within any of these four tests. Mr Jones had no express or implied authority to strike Mr Blake. Further, it was not done in the course of furtherance of the employer’s interests as it put the health and safety of workers at risk. As to the fourth ground, Mr Jones’ actions were not sufficiently closely connected with his employment duties. Despite the fact that it was common practice for employees to play games and sports at the depot while they waited to refuel, which was permitted by their employer, it was held that physical violence did not fall within the scope of Mr Jones’ employment.
This case neatly summarises the different tests for vicarious liability set out in the decisions of Deatons and Lepore in determining when an employer will be vicariously liable for the actions of their employee.