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Blake v J R Perry Pty Ltd

Blake v J R Perry Pty Ltd

Case [2010] VSC 272 18 June 2010

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT WARRNAMBOOL

COMMON LAW DIVISION

No. 335 of 2008

TREVOR CHARLES BLAKE	Plaintiff
v
J R PERRY NOMINEES PTY LTD	Defendant

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JUDGE:	J FORREST J
WHERE HELD:	Warrnambool
DATES OF HEARING:	25-27 May 2010 (Warrnambool) 31 May 2010 (Melbourne submissions)
DATE OF JUDGMENT:	18 June 2010
CASE MAY BE CITED AS:	Blake v J R Perry Pty Ltd
MEDIUM NEUTRAL CITATION:	[2010] VSC 272

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NEGLIGENCE – Vicarious liability of employer for unlawful assault by fellow employee upon co-worker – Scope of employment – Lepore v State of New South Wales considered - No direct liability in negligence – No vicarious liability for employee’s actions – Employee’s actions not sufficiently connected to duties of employment – Whether employee’s actions were in furtherance of employer’s interests.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Keely and Mr J Fitzpatrick	Stringer Clark
For the Defendant	Mr P Scanlon QC and Mr P B Jens	Lander and Rogers

HIS HONOUR:

Introduction

Mr Trevor Blake, the plaintiff, was injured on 16 October 2001 at the Portland Wharf when, without warning, a fellow worker, Mr Lindsay Jones (‘Mr Jones’), in what was an ill-considered prank, struck Mr Blake’s knees with some force, causing his legs to give way. Within a short time Mr Blake experienced back pain which has continued to the present time and has been productive of considerable disability.

Mr Blake now sues his employer, J R Perry Nominees Pty Ltd (‘Perry’), making two substantive allegations of negligence –

(a)That Perry is directly liable to Mr Blake for failing to take reasonable care for his safety; and
(b)That Perry is vicariously liable for Mr Jones’ actions.

Subsequent to the completion of the evidence the parties agreed on quantum of Mr Blake’s claim at a total sum of $370,000 plus retention of payments of compensation being $222,745 in weekly payments and $10,910 pursuant to s 98C of the Accident Compensation Act 1985 (“the Act”).[1]
[1]The parties agreed that $196,000 was attributable to pain and suffering damages and $180,000 to loss of earning capacity damages.

The trial

The trial on both liability and quantum was completed within four days. Counsel and their instructing solicitors are to be complimented on their cooperation and efficiency in ensuring the swift but nevertheless comprehensive presentation of the evidence and their submissions.

Given the agreement between the parties as to quantum, it is not necessary to refer to the evidence adduced on this issue. Two witnesses gave evidence as to liability: Mr Blake and Mr Daryl White, a driver also employed by Perry at the time of the incident. Mr Jens, who appeared on behalf of Perry, informed the court that he proposed to call Mr Peter Murray, the manager of Perry at the relevant time. Mr Murray was, however, not called and no evidence was adduced on behalf of Perry. Subsequently, Mr Jens, in response to a call by Mr Keely who, with Mr Fitzpatrick, appeared for Mr…

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.

Continue reading Blake v J R Perry Pty Ltd

Details

AGLC: Blake v J R Perry Pty Ltd [2010] VSC 272
Case: [2010] VSC 272
Decision Date: 18 June 2010

CaseChat Overview and Summary

In the Federal Court of Australia, Blake sued J R Perry Pty Ltd for negligence arising from an assault by an employee on the plaintiff during working hours. The plaintiff sought damages for the physical and psychological harm suffered due to the assault. The primary legal issue before the court was whether the employer could be held vicariously liable for the employee's actions under the principles of vicarious liability. Specifically, the court had to determine if the employee's assault was sufficiently connected to his employment duties to warrant the employer's liability.

The court examined the circumstances of the assault to ascertain whether it occurred within the scope of the employee's employment. The court considered whether the employee's actions were in furtherance of the employer's interests or if they were a departure from his employment duties. The court referenced the case of Lepore v State of New South Wales to evaluate the extent of the employer's liability. After thorough analysis, the court concluded that the employee's actions were not sufficiently connected to his employment duties and did not further the employer's interests. Therefore, the employer was not held vicariously liable for the employee's assault.

Given the findings, the court dismissed the plaintiff's claim against the employer for vicarious liability. The court held that the employer could not be held directly liable in negligence for the employee's actions. The plaintiff's claim against the employer was thus unsuccessful.

Orders