Australia: Tripping on the Dock of the Bay: vicarious liability

The plaintiff, Trevor Blake, was a fuel tank driver employed by the defendant, J R Perry Nominees Pty Ltd. He was waiting with two fellow employees for a delayed ship to arrive at the Portland dockyard so that they could re-fuel it. Out of boredom, one of the plaintiff's fellow employees, Lindsay Jones, decided to play a prank on him by striking him at the back of the knees without warning, causing his knees to buckle. He fell, sustaining severe damage to his back.

The plaintiff's claim against his employer was unsuccessful at first instance, and the question which arose on appeal was whether the employer was vicariously liable for the plaintiff's injuries.

Harper JA of the Victorian Court of Appeal closely examined the logic which underpins the doctrine of vicarious liability. He noted that employers are to assume the risk that an employee of theirs may cause loss or damage. However, the difficulty arises when the harm is caused by the employee's unauthorised acts.

Vicarious liability requires some connection between the wrongful act and the wrongdoer's employment. In this case, the plaintiff argued that the tort was a result of the boredom of Jones, which was a result of his employment. Neave JA agreed with the plaintiff.

However, Harper JA (with whom Robson AJA agreed) held that the actions of the prankster employee were not done in the furtherance of his employment, nor were they done under an express or implied authority or in consequence of anything he was employed to do. The act was simply the spontaneous act of a prankster, and not in the course of his employment.

Blake v J R Perry Nominees Pty Ltd [2012] VSCA 122

The Court of Appeal has confirmed that employers will not be deemed vicariously liable for the actions of their employees unless the employer has expressly or impliedly authorised the wrongful act. Further, the wrongful act must be connected in some way with the scope of the employment.

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