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
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
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  VSCA
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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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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