In the recent decision of Blake v JR Perry Nominees Pty Ltd [2012] VSCA 122, the Supreme Court of Victoria Court of Appeal held that an employer, whose worker was injured as a result of a colleague's prank, was not liable in negligence either directly or vicariously. The decision is interesting, partly because the injury was fairly significant (and the injured worker was left uncompensated), but also because it restates the proposition that an employer will not be liable for workplace incidents occurring beyond its reasonable control.

The employer, Perry, had a contract to refuel a survey vessel due at a wharf on 16 October 2001. The only instructions given to the employee, Blake, were to collect the fuel from the depot on Monday 15 October, transport it to the wharf and wait for the vessel to dock. Waiting periods could vary, depending upon the conditions at sea, from a few hours, to (as here) late the next day.

Blake and two colleagues arrived at the wharf that evening. The next day, they were told that the vessel would not dock until the evening. In the mid-afternoon, Blake and one of his colleagues, White, walked down the wharf to where the vessel was due to dock. Without warning, Blake was struck behind the knees by the third colleague, Jones, and fell to the ground.

The suggestion was made that Perry should have arranged activities to relieve the boredom during the extended wait but this was dismissed by the Judge as "absurd". Each of Perry's employees was 50 years of age or more and could reasonably be expected to behave sensibly. There was also no evidence from which it could be inferred that Jones acted out of boredom. Refuelling formed part of the everyday activities of Perry employees.

In any event, it was not the fact of waiting that led to Blake's injury; Jones alone was responsible for his actions and Perry could not have been expected to foresee that the waiting period would result in conduct leading to an injury such as this. It was also considered unlikely that an employer would foresee that a mature-aged employee would set upon a fellow employee to vent his frustration at waiting for an overdue ship.

The Court restated that to establish vicarious liability, the offending act had to be committed by the employee both in the course of employment and within the scope of his authority, either as an act he was employed to perform or one which was sufficiently incidental to employment to be regarded as within its scope.

Thus, an employer will only be liable where those actions are:

  • expressly authorised by the employer; or
  • impliedly authorised by the employer; or
  • 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.

Jones clearly had no express authority to strike Blake and there was no reason to conclude that the unlawful act of striking a fellow employee was within an employee's implied authority, whether or not it was a prank. Furthermore, Jones' actions were necessarily contrary to Perry's general interests as they risked the health and safety of its worker and rendered it potentially liable to compensate Blake. Lastly, Jones' actions were not sufficiently closely connected with his employment duties. Physical violence was not a natural consequence of waiting for the ship.

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