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 case restates the proposition that an employer will not be liable for workplace incidents occurring beyond its reasonable control. This is in the absence of any bright line rule for determining whether an employer will, or will not, be held liable for harm caused to a third party by the unauthorized acts of an employee.
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. The following day, Blake and one of his colleagues, White, were waiting at the wharf 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. His injuries were severe.
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," and there was no evidence from which it could be inferred that Jones acted out of boredom. Refueling formed part of the everyday activities of Perry employees.
Whether the employer was to be held vicariously liable was to be determined by taking into account the context in which the act causing the appellant's injury occurred.
In the view of the majority, vicarious liability was not able to be established as:
- Perry could not have been expected to foresee that the waiting period would result in conduct leading to an injury such as this
- Jones had neither express or implied authority to strike Blake (as an unlawful act). The action of Mr Jones was the "spontaneous act of a prankster"
- Jones' actions were contrary to Perry's general interests. They risked the health and safety of its employees
- Jones' actions were not sufficiently closely connected with his employment duties as a truck driver.
In dissent, Neave JA found that Jones' action was sufficiently incidental to the performance of his duty to be regarded as falling within its scope.
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