In the recent decision of Blake v JR Perry Nominees Pty
Ltd  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
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
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
expressly authorised by the employer; or
impliedly authorised by the employer; or
done in the supposed furtherance of the employer's
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
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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