SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APC1 2010 0091
| TREVOR BLAKE | |
| Appellant | |
| v | |
| J R PERRY NOMINEES PTY LTD | Respondent |
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JUDGES: | NEAVE and HARPER JJA and ROBSON AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 22 SEPTEMBER 2011 | |
DATE OF JUDGMENT: | 14 June 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 122 | |
JUDGMENT APPEALED FROM: | Blake v J R Perry Pty Ltd [2010] VSC 272 (J Forrest J) | |
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TORT – Vicarious liability – Employee sustained back injury after a colleague played a prank on him – Whether employer liable for injury – Appropriate test to determine vicarious liability - Lister v Hesley Hall Ltd [2002] 1 AC 215, New South Wales v Lepore, Samin v Queensland, Rich v Queensland (2003) 212 CLR 511, Trotman v North Yorkshire County Council [1999] LGR 584, Bazley v Curry (1999) 174 DLR (4th) 45; [1999] 2 SCR 534, Mattis v Pollock [2004] 4 All ER 85, N v Chief Constable of Merseyside Police [2006] EWHC 3041 (QB) and Deatons Pty Ltd v Flew (1949) 79 CLR 370 discussed – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr A J Keogh SC with Mr J J Fitzpatrick | Stringer Clark |
| For the Respondent | Mr J Ruskin QC with Mr S A O’Meara | Lander & Rogers |
NEAVE JA:
I have had the advantage of reading Harper JA’s reasons in draft and have been greatly assisted by his Honour’s clear and succinct analysis of the leading English, Australian and Canadian authorities on vicarious liability. Unfortunately, I have reached a different conclusion from his Honour on the issue which arises in this case.
This is not surprising. Although the authorities set out various tests for deciding when an employer should be held vicariously liable, these verbal formulae do not provide 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 unauthorised acts of an employee.
This gives rise to uncertainty (and sometimes inconsistency) in deciding how these tests apply in particular factual situations. As Kirby J remarked in New South Wales v Lepore:[1]
the determination of liability, on the basis of the connection between the [employer’s] enterprise and the wrong, is inescapably a question of fact[2] and degree.[3] There will inevitably be differences of opinion, as there were in Jacobi v Griffiths,[4] a decision of the Supreme Court of Canada delivered on the same day as Bazley.[5] Lines have to be drawn. Judicial differences will exist about them. Distinctions of such a kind are inherent in the application of legal rules that are stated in terms of concepts. They are not a reason for adhering to earlier formulations that are themselves difficult to apply. Legislatures may, as they choose, impose arbitrary ‘caps’ and limitations. However, the common law searches for basic principles informed by such notions as justice, reasonableness and fairness.
[1](2003) 212 CLR 511, 619 [322] (‘Lepore’).
[2]
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- [2012] VSCA 122
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the employer could be held liable for the actions of the employee who caused the injury. This required the court to assess the relationship between the employee’s actions and their employment, as well as the applicability of established legal principles governing vicarious liability. The court considered various cases, including Lister v Hesley Hall Ltd, New South Wales v Lepore, Samin v Queensland, and Rich v Queensland, to establish the appropriate test for determining vicarious liability. The court also examined decisions from Bazley v Curry, Mattis v Pollock, N v Chief Constable of Merseyside Police, and Deatons Pty Ltd v Flew to further refine the analysis.
The Supreme Court held that the employer was not vicariously liable for the injury caused by the employee’s prank. The court reasoned that the employee’s actions were so unconnected to their employment and were instead a deliberate act of mischief intended to cause harm, that it would not be just and equitable to hold the employer liable. The court followed the precedent set in previous cases that the employer is generally not liable for the wilful wrongdoings of an employee if those actions are outside the scope of employment. Consequently, the appeal was dismissed, affirming the decision of the lower court.
No specific final orders were provided in the text.
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