Blake v J R Perry Nominees Pty Ltd: vicarious liability and unauthorised acts of an employee

Background

In matter Blake v J R Perry Nominees Pty Ltd [2012] VSCA 122, Mr Trevor Blake was a fuel tank driver employed by J R Perry Nominees Pty Ltd (“J R Perry”). On 16 October 2001, Mr Blake was at the Portland Dockyards waiting to refuel a ship, however, its arrival into the port had been delayed. As a result Mr Blake and his fellow truck driver including Mr Lindsay Jones, also an employee of J R Perry, were obliged to wait for the tanker.

Whilst Mr Blake was looking out to sea, Mr Jones suddenly and without warning struck Mr Blake hard to the back of the knees. The impact caused Mr Blake to fall and cause severe damage to his back, from which he never recovered.

Mr Blake sued J R Perry and submitted that J R Perry was vicariously liable for the damage he had suffered at the hands of Mr Jones, because Mr Jones was motivated out of boredom.

Whilst Mr Blake was unsuccessful in the Supreme Court of Victoria at first instance, on appeal the question was whether J R Perry as the employer was vicariously liable for Mr Blake’s injuries.

Judgment on appeal

Several tests were considered and discussed by the Court of Appeal to determine whether J R Perry was vicariously liable including:

1. that the wrongful act committed must sufficiently relate to the conduct authorised by the employer to justify the imposition of vicarious liability¹;
2. that the wrong committed must be so closely connected with the employment, that it would be fair and just to hold the employer vicariously liable²;
3. that vicarious liability can be imposed for deliberate wrongs if the person against whom the liability is asserted is estopped from asserting that the person whose acts are in question was not acting as their servant, agent or representative when the acts occurred³; and
4. that for vicarious liability to exist, the wrongful act committed must have been intentionally performed in the interests of the employer⁴.

In applying the different tests, the majority found that Mr Blake failed to prove that J R Perry should be held vicariously liable for the conduct of Mr Jones. The Court held that it would not be fair or just to hold J R Perry liable for the damage caused by the prank committed by Mr Jones, because of the weak connection between the wrong and his employment. Further, the majority held that the action of Mr Jones hitting Mr Blake was done neither in furtherance of the interests of J R Perry nor under its expressed or implied authority, nor was it an incident to or in consequence of Mr Jones’ employment, but rather it was a spontaneous act of a prankster and not within the course of his employment as a truck driver.

Practical implications

The Court of Appeal has confirmed that employers will not be found vicariously liable for the actions of their employees unless:

1. the employer expressly or implied authorised the wrongful act;
2. the act was so closely connected with the duties and responsibilities of an employee and therefore within the scope of employment; or
3. the act was executed in the employer’s interests.

1 Bazley v Curry (1999) 174 DLR (4th) 45, McLachlin J.
2 Lister v Hesley Hall Ltd [2012] 1 AC 215 [28], Lord Steyn.
3 New South Wales v Lepore [2003] HCA 4, Gaudron J.
4 New South Wales v Lepore [2003] HCA 4, Gummow and Hayne JJ.