Blake v J R Perry Nominees Pty Ltd

[2012] VSCA 122

Victorian Court of Appeal

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Interrogate

Catchwords

1. Tort
2. › Vicarious liability
3. › Course of employment
4. › Unauthorised acts of employee
5. › Employee prank causing injury to fellow employee
6. › Whether prank sufficiently connected to employment
7. › Whether horseplay during waiting time incidental to employment
1. Tort
2. › Vicarious liability
3. › Course of employment
4. › Appropriate test
5. › Close connection test
6. › Improper mode of performing authorised act
7. › Estoppel test
8. › Intended pursuit of employer's interests test
9. › Whether any test satisfied
1. Appeal
2. › Standard of appellate review
3. › Findings of fact by trial judge
4. › Whether inference of boredom as motive available on the evidence
5. › Warren v Coombes (1979) 142 CLR 531

Quick Take

A spontaneous prank by an employee against a fellow employee, even during a period of enforced waiting in the course of employment, does not give rise to vicarious liability where the prank was generated wholly within the employee's mind and was not done in furtherance of the employer's interests, under express or implied authority, or as an incident to anything the employee was employed to do. The motive or state of mind of the wrongdoing employee (such as boredom) is irrelevant to vicarious liability except where the employee is seeking to advance the employer's interests. However, the dissent suggests that where horseplay is foreseeable and tolerated by the employer, and occurs during employment-related waiting time, a different conclusion may be reached.