Blake v J R Perry Nominees Pty Ltd - [2012] VSCA 122

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 (4^th) 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]

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] VSCA 122
Decision Date: 14 June 2012

CaseChat Overview and Summary

Blake brought an action against J R Perry Nominees Pty Ltd, claiming compensation for a back injury sustained at work. The incident occurred when a colleague played a prank on Blake by placing a piece of metal in his chair, causing him to injure his back when he sat down. The dispute was heard in the Supreme Court of Queensland, which had to determine whether the employer was vicariously liable for the injury.

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.

Orders