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 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
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
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
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.
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.
Kemp Strang has received acknowledgements for the quality of
our work in the most recent editions of Chambers & Partners,
Best Lawyers and IFLR1000.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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