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

1 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.

2 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.

3 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.

4 The policy bases for the principle of vicarious liability necessarily influence the decision as to whether a particular act falls within the course of the wrongdoer's employment. However, as the majority of the High Court observed in Sweeney v Boylan Nominees Pty Limited:[6]

It is important...to begin examination of the issues in this appeal from a frank recognition of some considerations that are reflected in those decisions. First, "[a] fully satisfactory rationale for the imposition of vicarious liability in the employment relationship has been slow to appear in the case law". Secondly, "the modern doctrine respecting the liability of an employer for the torts of an employee was adopted not by way of an exercise in analytical jurisprudence but as a matter of policy". That may suggest that the policy to which effect was given by "the modern doctrine" is clearly identified, but, as is implicit in the first proposition, the policy which is said to lie behind the development of the modern doctrine is not and has not been fully articulated. Thirdly, although important aspects of the law relating to vicarious liability are often traced to the judgment of Parke B in Quarman v Burnett,[7] neither in that decision, nor in other early decisions to which the development of the doctrine of vicarious liability may be traced, does there emerge any clear or stable principle which may be understood as underpinning the development of this area of the law.

5 The imposition of vicarious liability on an employer for harm caused by the acts done by an employee in the course of employment has been explained in at least three ways. First, as Harper JA observes in his reasons, the conduct of a business by an employer creates risks that third parties may be harmed by employees when they carrying out duties connected with their employment. It is fair that an employer who benefits from a business should also bear the costs of injury which fall within the risks created by the conduct of that business.[8] To put it another way, the imposition of vicarious liability recognises that, in certain circumstances, it would be unfair for the employer to shift the costs of an injury arising out of the conduct of the business to an injured third party.[9]

6 This rationale is reflected by Lord Steyn's statement in Lister v Hesley Hall Limited,[10] that the question of vicarious liability should be resolved by asking whether the employee's 'torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable.'[11]

7 Secondly, the imposition of vicarious liability on an employer may have a deterrent purpose, by encouraging employers to adopt systems which reduce the risk that third parties will be injured by employees acting in the course of their employment.[12]

8 Thirdly, as Kirby J observed in Lepore, vicarious liability is a mechanism for distributing the costs of injury caused by employees, even when their acts were unauthorised.

[D]eterrence is neither the main nor only factor to consider in judging whether vicarious liability is imposed by the law. It should be taken together with the risk analysis above and with a candid acknowledgment that vicarious liability is a loss distribution device available in the cases to which it applies. It is essential to examine the problem of liability from the point of view of the victims of criminal wrongdoings. Ordinarily (and in the circumstances of the present cases) such victims are completely innocent of any wrong. Commonly, at least in respect of those who pursue claims at law, they will have suffered harm and incurred medical and other costs. The [employee] who performed the wrongs may not have assets sufficient to afford redress.[13]

9 These policy objectives suggest that the requirement that the employee's acts be performed in the course of employment should not be applied narrowly. A relatively broad approach to the application of the vicarious liability principle is apparent in the decision of the majority of the High Court in Lepore, in the House of Lords decision in Lister, and the Supreme Court of Canada's decision in Bazley, in each of which it was held that an employer may, in some circumstances, be liable for sexual assaults committed by a teacher or other employee who has responsibility to care for children.

10 The decision of the Privy Council in Bernard v Attorney-General of Jamaica[14] may be the high water mark of a broad approach to the principle of vicarious liability. In Bernard, an off-duty policeman[15] told a man who was queuing for a public phone to give up his place, by announcing 'police', and then saying 'boy leggo this, police'. When the victim refused to relinquish his place in the queue, the policeman shot him point blank in the head with a service revolver. The man survived and was taken to hospital, where he was arrested by a group of policemen, including the man who had shot him.

11 The Privy Council held that it was open to the trial judge to hold that the Attorney-General was liable for the acts of an off-duty policeman, because he was purporting to act as a police officer immediately before he shot the victim and because permission to police to take their loaded service revolvers home created the risk that person would be injured by their use.

12 These cases also highlight the need to examine the particular factual context in which wrongful acts are done by an employee.[16] In Lepore, for example, Gleeson CJ emphasised the importance of examining the factual context in order to decide whether an employer was liable for the sexual abuse of a student by a teacher. He noted that in some circumstances, the school context might simply provide the opportunity for the commission of an assault, whilst in others the use of the power and intimacy existing in the student-teacher relationship might provide a sufficient connection between the sexual assault and the employment to make it just to treat the sexual context as occurring in the course of employment.[17]

13 Lepore and the similar decisions of the House of Lords in Lister and of the Supreme Court of Canada in Bazley have been explained by some commentators on the basis that teachers (and others in equivalent positions) are often placed in a position of power and responsibility over children or other vulnerable people in their care. However, as Lloyd v Grace Smith & Co[18] and Morris v CW Martin & Sons Ltd[19] demonstrate, these are not the only circumstances in which employers have been held liable for deliberate criminal acts by their employees.

14 An approach under which an employer may be held vicariously liable for the serious criminal act of sexual abuse, or for the defalcation or theft by an employee, but not for an injury caused by an employee in a brief episode of horseplay while waiting to perform a required task, is difficult to justify on policy grounds.

15 The question whether the respondents in this case were liable for the injury caused by the foolish prank of its employee, Mr Lindsay Jones ('Jones'), cannot be determined in the abstract, but must take account of the context in which the act causing the appellant's injury occurred.

16 Further, as has frequently been pointed out, the level of generality used to describe the nature of the employee's wrongful act may determine the question whether the wrongful acts were done in the course of a worker's employment.[20] If the wrongful act committed by Jones is isolated from the context in which it occurred, it could be characterised simply as an unlawful assault, for which Jones' employment simply provided the opportunity. If, on the other hand, it is characterised as an act of boisterousness or skylarking, which occurred while Jones was acting in the course of his employment by waiting on the wharf to refuel the ships, a different conclusion would be reached.

17 In my opinion, the latter approach is the correct one. The evening before the accident occurred, the appellant, Jones and Mr Daryl White (all employees of the respondent) had each driven tankers loaded with fuel from Caltex Newport to the wharf at Portland, in order to discharge the respondent's contractual obligation to refuel a survey vessel ('the vessel') due to dock at the Portland wharf on 16 October 2001. The men had been instructed that the vessel was scheduled to dock at around 8 or 9 o'clock the following morning.

18 The appellant's evidence was that the respondent had not given its drivers any instructions about what they were to do while waiting at the wharf, although they were told to 'just be there'. They were instructed that they had to stay in sight of their trucks because they were carrying dangerous goods. Because there was nowhere for the men to sleep, they spent the night in the sleeper cabin on their trucks. The arrival of the vessel was ultimately delayed until the late afternoon, and the incident occurred approximately 18 hours after Jones and the appellant had arrived at the wharf.

19 The men were not prohibited from engaging in any physical activities such as kicking a ball around, although there was no evidence that they did so. While they were waiting for the vessel to arrive, the drivers took turns to walk into the Portland township, wandered around the wharf and made themselves cups of coffee in the lunchroom used by wharf workers. Although the drivers had unofficial access to this room, they only used it for brief periods as their use of the room was not favoured by some of the wharf workers.

20 The respondent's drivers were not normally paid for waiting to load and unload. However, White negotiated with Roger Perry of the respondent for the drivers to be paid $50 for waiting time.

21 Jones was not called as a witness at trial, so there was no direct evidence about his reason for striking the appellant. The learned trial judge said that:

There is no evidence of any sort to suggest that Mr Jones, out of frustration, perhaps actuated by boredom, was minded to attack Mr Blake. Neither Mr Blake nor Mr White said that their patience levels had got to such a point that they had become frustrated or bored - understandably their primary concern was the loss of income occasioned by waiting rather than its occurrence. Nor did either give any evidence of Mr Jones expressing frustration whilst waiting.[21]

22 Although there was no direct evidence about Jones' mood, the appellant said that 'by this stage of the game', when the men were told at about 2 pm that the boat would not arrive until later in the afternoon or evening of 16 October, 'everybody was getting a bit bored' and that Jones whacked him behind the knees soon afterwards. The trial judge accepted that the appellant was 'a reliable and truthful witness.'[22]

23 The appellant also gave evidence that at times when the men were hanging around the yard to wash their trucks 'there was a lot of...good-hearted clowning about'. When asked to give examples, he said that:

Well, if you were going to wash - the wash bay was empty for argument's sake, and you were going to wash your truck and you knew - you saw one of the other guys just pull into the yard in his car, or whatever, and you knew he was going to wash his truck, you would slip over and disconnect his airlines on his trailer so the trailer brakes would lock on, so as he couldn't move his truck, give you a chance to beat him to the wash bay, that sort of thing. Play cricket in the season. Play footy in the season.

24 If an employee had been injured as a consequence of a similar act of horseplay in the yard, I consider that the employer was likely to have been held vicariously liable. As Mahoney JA commented in Petrou v Hatzigeorgiou:[23]

[I]f the injury had arisen from a squirt from the air compressor hose by Mr Dimitriadas the employer might well, I think, have been held vicariously liable. I do not mean by this that everything which occurs in horseplay during employment imposes liability on the employer. But his Honour was, I think, generally correct in placing horseplay as he did in the industrial context. In such a context, there are things which specifically an employee is directed to do as part of his employment; there are results which he is expected to achieve but which he is permitted to achieve by doing such things as he thinks appropriate; and there are things which, though not directed to be done or authorised to be done in these senses, the employer knows are apt to occur in his workplace and tolerates as part of the environment of it: see generally Petreski v Australian Iron and Steel Pty Limited (Court of Appeal, 31 October 1990, unreported). Some forms of horseplay at least are, I think, of this latter character. If Mr Dimitriadas, in the course of finding the compressed air hose and taking it to his workplace, had squirted the plaintiff I am inclined to think that any injury resulting from it would be the vicarious responsibility of the employer.

25 In that case, Mahoney JA[24] said that the question whether the act occurred in the course of the partnership business was to be tested by considering whether it 'went beyond the kind of activity which the employer saw as appropriate to be tolerated between employees in the course of their employment'.

26 The appellant's evidence was that when they were in the yard, the men were not instructed that they could not play football or cricket or should not engage in horseplay. Given the employer's toleration of the behaviour of the drivers in the yard, there was a real possibility that when drivers had to wait at a wharf without any facilities for a considerable period, some of them would engage in clowning or horseplay to wile away the time.[25]

27 There was no history of animosity between Jones and the appellant. Nor was there any evidence that Jones was actuated by malice or an intention to harm the appellant. The facts of this case therefore differ significantly from Deatons v Flew,[26] where the barmaid's act in throwing a glass at a patron was held to be 'a spontaneous act of retributive justice'.[27]

28 Nor was there any evidence that Jones was a violent man who used work situations as an opportunity to assault other workers. Jones was laughing after the appellant fell to the ground, though he apologised after the appellant reproached him for his actions. As far as the evidence goes, it suggests that Jones was simply skylarking or clowning, just as drivers in the yard sometimes did.

29 Although his behaviour had disastrous consequences for the appellant, these were unintended. The paucity of evidence of Jones' motivation was not fatal to the appellant's claim. The drivers must surely have had the implied authority of their employer to listen to the radio or an iPod, play cards, or play games while they were waiting on the wharf. Contrary to the trial judge's view, I do not consider that playing a prank on a fellow worker should be regarded in a different light.

30 Jones' action was the kind of conduct which often occurs during down time when men take a break from physical work. Because the tanker drivers were mature men it was not inevitable that they would engage in physical horseplay during their long wait, but it was certainly predictable that they might do so. Jones' action in 'kneeing' the appellant was not dissimilar to the physical activity and pranks played in the yard while the men were waiting to wash their tankers.

31 A number of cases have held that an employer may be vicariously liable for an assault incidental to acts the employee is authorised to perform. In Hayward v Georges Ltd,[28] McInerney JA held that it was open to a jury to find that an employer was vicariously liable for the act of an employee who injured a co-employee by vigorously thumping her on the back while she was on a stool inspecting the water in a tea urn.[29]

32 In Commonwealth of Australia v Connell,[30] the New South Wales Court of Appeal held that the trial judge had not erred in leaving it to the jury to decide whether the Commonwealth could be held vicariously liable for injury caused to a young sailor when he was pushed off a bridge as the result of skylarking which

occurred when another young man was being lowered into the water on a stretcher as part of a training operation. The Court commented that it was open to the jury to conclude that 'the conduct of the twenty apprentices in general and of [the perpetrator] in particular was incidental to the performance of their service duties and/or was an improper mode of performing those duties'.[31]

33 Although the trial judge referred to these decisions, he regarded them as distinguishable from this case. I take a different view.

34 In my opinion, Jones' action occurred in the course of his employment, or was at least sufficiently incidental to the performance of his duty, to be regarded as falling within its scope. Further, if the Lister test accepted by Gleeson CJ and Kirby J in Lepore is applied, there was a 'sufficient connection'[32] or a 'sufficiently close connection'[33] between Jones' actions and his employment as to make it just that the respondent should be liable for the appellant's injury.

36 It was the middle of the afternoon of Tuesday 16 October 2001. The Portland dockyards were quiet. A ship was due to be refuelled during the course of the morning, but its arrival in the port had been delayed. Now it was not expected until the evening. In the meantime, the fuel tankers and their drivers, some of whom had arrived the night before, were obliged to wait.

37 One of those drivers was the appellant, Trevor Blake, an employee of the

respondent. Two more of the respondent's employees, Daryl White and Lindsay Jones, were also waiting, with their tankers; and so were other drivers and other vehicles from different transport organisations.

38 As the appellant and White stood looking out to sea, Jones suddenly and without any warning struck the appellant hard to the back of his knees. The consequences could hardly have been worse. The appellant crumpled, but was saved by White from complete collapse. The blow from behind, and the consequent sudden and unexpected loss of the support of his legs, nevertheless caused severe damage to the appellant's back. He never recovered. The question now is whether the respondent, as Jones' employer, is vicariously liable for the consequences.

39 At trial, the appellant contended that vicarious liability does arise. He conceded that there was no antagonism between the two men; and that was confirmed by evidence called at the trial. Nevertheless, Jones' motive remains shrouded in doubt. It may have originated in a sudden rush of blood to Jones' head, or a childish prank which went very wrong. The plaintiff submitted that it must have been boredom; otherwise Jones' action was inexplicable. And if it was boredom, then - so the plaintiff's argument ran - vicarious liability is readily established.

40 The trial judge disagreed. He held that this was not an occasion giving rise to vicarious liability. Hence the appeal with which we are now concerned.

41 An examination of the issues to which this litigation gives rise comes back in the end to an examination of the policy which underpins the doctrine of vicarious liability. The foundation of that policy lies with the proposition that employers choose to take on employees, knowing that there will be consequences. Some of these will be beneficial. That at least will be the expectation, because otherwise the choice to take on staff would not be made.

42 But as every employer, actual or prospective, knows, there are two sides to the coin. For one thing, employees must be paid. For another, the employer must in general assume the risk that, in carrying out duties and functions which are relevantly connected with his or her employment, the employee will cause injury or damage. If the employer has authorised the wrongful act, the employer will be directly liable. The difficulty arises when the harm is caused by the employee's unauthorised acts.

43 If, in the particular case, the law imposes upon the employer the risk that unauthorised acts of the employee might cause compensable harm to others, it will be on the basis that vicarious liability is in justice the price, or part of the price, to be paid in exchange for the benefits to the employer which the employees' employment was designed to promote.

44 The difficulty lies in defining and describing those circumstances in which it is just that liability be imposed vicariously as an element of the cost to the employer of the overall benefit of the employees' services. An actual or intended benefit to the employer may give rise to vicarious liability; but such a benefit is not a necessary condition of that consequence. Indeed, it is now clearly established that intentional torts, including deliberate sexual abuse, are not inconsistent with vicarious liability. As Lord Millett said in Lister v Hesley Hall Ltd:[34]

So it is no answer to say that the employee was guilty of intentional wrongdoing, or that his act was not merely tortious but criminal, or that he was acting exclusively for his own benefit, or that he was acting contrary to express instructions, or that his conduct was the very negation of his employer's duty.

45 If vicarious liability is to arise, there must be some connection, between the wrongdoer's wrongful act and his or her employment. The difficulty is in differentiating between those occasions upon which vicarious liability should be imposed upon an employer, and those occasions when it should not. In these circumstances, a degree of uncertainty in the operation of the principle of vicarious liability is inevitable. It is certainly now present. Thus, in a case which involved an allegation by a male complainant that while at school as a child of the age of seven or eight he had been sexually abused by one of his schoolteachers, the High Court by a majority held that a school authority may be vicariously liable for sexual abuse of a student by a teacher.[35] But in four different judgments, the Court set out different tests for determining liability.

46 This was the case of New South Wales v Lepore.[36] I shall return to it. In the meantime, it is helpful to examine some earlier authorities. In Lloyd v Grace Smith & Co,[37] a firm of solicitors was held to be vicariously liable to a client of the firm who had been defrauded by the firm's managing clerk. The firm itself was not a beneficiary of its employee's wrongdoing. But justice required that it, rather than the client, be required to assume the burden when the risk of employee misbehaviour was translated into the actuality of the employee's criminal conduct.

47 The risks to be considered, therefore, are not confined to those risks which attend the furtherance of the venture, but include those of conduct that is directly antithetical to those aims.[38] On the other hand, it is an essential aspect of the rules concerning vicarious liability that the wrong-doing be legally characterised as occurring in the course of employment. It is not sufficient to establish merely that, but for the employment, the wrongful act could not or would not have occurred.[39]

48 For nearly a century, English judges adopted, as a means of differentiation between circumstances giving rise to vicarious liability and those which did not, the test propounded by Salmond in his The Law of Torts.[40] The learned author there stated that an employer is liable even for unauthorised acts if they are so connected with authorised acts that they may be regarded as modes - although improper modes - of doing them; but the employer is not responsible if the unauthorised and unwarranted act is not so connected with an authorised act as to be a mode of doing it, but is an independent act.

49 It was held by the English Court of Appeal in Trotman v North Yorkshire County Council[41] that the application of this test excluded vicarious liability where a pupil on a school holiday excursion was sexually assaulted by his deputy headmaster. Chadwick LJ found it:

impossible to hold that the commission of acts of indecent assault can be regarded as a mode - albeit , an improper or unauthorised mode - of doing what ... the deputy headmaster was employed ... to do. ... Rather, it must be regarded as an independent act of self-indulgence or self-gratification.[42]

50 The outcome in Trotman did not meet with the approval of either the Supreme Court of Canada[43] or the House of Lords[44]. In Bazley v Curry McLachlin J, who delivered the judgment of the Court, criticised the decision in Trotman in the following terms:

[T]he opinion's reasoning depends on the level of generality with which the sexual act is described. Instead of describing the act in terms of the employee's duties of supervising and caring for vulnerable students during a ... trip abroad, the Court of Appeal cast it in terms unrelated to those duties. Important legal decisions should not turn on such semantics.[45]

51 McLachlin J then examined the considerations of policy underlying the concept of vicarious liability, and said:

Underlying the cases holding employers vicariously liable for the unauthorized acts of employees is the idea that employers may justly be held liable where the act falls within the ambit of the risk that the employer's enterprise creates or exacerbates. Similarly, the policy purposes underlying the imposition of vicarious liability on employers are served only where the wrong is so connected with the employment that it can be said that the employer has introduced the risk of the wrong (and is thereby fairly and usefully charged with its management and minimization). The question in each case is whether there is a connection or nexus between the employment enterprise and that wrong that justifies imposition of vicarious liability on the employer for the wrong, in terms of fair allocation of the consequences of the risk and/or deterrence.

52 Her Honour later elaborated her views on the concept of sufficiency of connection, saying:

the fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability. Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer's desires.[46]

53 Like Trotman and Bazley, Lister v Hesley Hall Ltd[47] was another case involving sexual assaults on children. The claimants (residents in a boarding house attached to a school owned and managed by the defendants) had been sexually abused by the head of the house (whose title was 'warden'). In his speech, Lord Steyn said:

[25] In my view the approach of the Court of Appeal in Trotman v North Yorkshire County Council ... was wrong. It resulted in the case being treated as one of the employment furnishing a mere opportunity to commit the sexual abuse. The reality was that the county council were responsible for the care of the vulnerable children and employed the deputy headmaster to carry out that duty on its behalf. And the sexual abuse took place while the employee was engaged in duties at the very time and place demanded by his employment. The connection between the employment and the torts was very close. I would overrule Trotman v North Yorkshire County Council.

...

[28] Employing the traditional methodology of English law, I am satisfied that in the case of the appeals under consideration the evidence showed that the employers entrusted the care of the children in [the boarding house] to the warden. The question is whether the warden's torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. On the facts of the case the answer is yes. After all, the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in [the boarding house]. Matters of degree arise. But the present cases clearly fall on the side of vicarious liability.

54 Lord Steyn's test did not, however, resolve all the difficulties, as an examination of two later cases demonstrates. In Mattis v Pollock,[48] a nightclub doorman or 'door supervisor', a man named Cranston, was employed by the nightclub owner as 'someone ... who could be relied upon to intimidate customers.'[49] Although the local by-laws required him to be registered, Cranston did not meet that requirement. He did, however, meet in full his employer's wish for an intimidator. Mattis had done nothing more than attempt to restrain Cranston while the latter was striking another innocent patron with a cosh. In retaliation for what he took as a public humiliation, Cranston fetched a knife from the apartment in which he lived some 500 metres from the club, returned, and stabbed Mattis in the back, severing the spinal cord and rendering his victim a paraplegic.

55 The nightclub's owner was held to be vicariously liable for the harm caused to Mattis. The court[50] held that the assault was 'so closely connected' with what the owner of the nightclub 'authorised or expected of Cranston in the performance of his employment as doorman at his nightclub, that it would be fair and just to conclude that [the owner] is vicariously liable for the damage Mr Mattis sustained when Cranston stabbed him.[51]

56 By contrast, in N v Chief Constable of Merseyside Police,[52] the Chief Constable escaped liability for the rape by an off-duty police officer of a helpless woman. She was drunk and drugged. She had been carried by a paramedic, an employee of the nightclub, out of the club in the hope of obtaining a taxi. The policeman was in his private car, which was parked nearby. He was in police uniform. After noticing the uniform, and being shown the police warrant issued to all officers as a means of their identification, the nightclub's paramedic asked for the officer's assistance. He (the policeman) offered to drive the woman to a police station. Instead, he put into effect a plan which, as the judge (Nelson J) held, he had had for some time. He drove his victim to his home, where the rape took place. What he did to her was recorded on equipment which he held in readiness for an opportunity such as that which presented itself that evening.

57 Nelson J held that the Chief Constable was not vicariously liable. His Lordship noted that:

when considering the vicarious liability of a chief constable the principles set out in Lister are applicable. ... [T]he test is whether the police officer's act was so closely connected with the acts he was authorised to do that, for the purposes of liability, his wrongful act may fairly and properly be regarded as made by him while acting in the ordinary course of his employment as a police officer.[53]

58 His Lordship concluded, in the case of N, that the act of the officer was not connected in this way. On the contrary, as a search of the offender's home revealed, he had been planning for months to capture just such a vulnerable female as N. He was, in anticipation of success, lurking outside the nightclub waiting for a potential victim, and thus 'at all times pursuing his own misguided personal aims, or in the classic phrase, '"on a frolic of his own".'[54]

59 If English courts have not found it easy to define the distinction between the occasions when the employer will be vicariously liable for the harm caused by an employee and those when the employer will not, neither have their Australian counterparts. As I have already mentioned, this is evident in the judgments of the High Court in New South Wales v Lepore.[55] Lepore had alleged that he had been both physically and sexually abused by a school teacher when he was about seven years old. The High Court held, in four different judgments, that a school authority may in certain circumstances be vicariously liable for sexual abuse by a teacher; but the four judgments resulted in four different tests for determining liability. Gleeson CJ and Kirby J favoured variations of the 'close connection' test propounded by Lord Steyn. Gleeson CJ made the point in relation to the facts of the case. He said:

Teaching may simply involve care for the academic development and progress of a student. In these circumstances, it may be that ... the school context provides a mere opportunity for the commission of an assault. However, where the teacher-student relationship is invested with a high degree of power and intimacy, the use of that power and intimacy to commit sexual abuse may provide a sufficient connection between the sexual assault and the employment to make it just to treat such contact as occurring in the course of employment. The degree of power and intimacy in a teacher-student relationship must be assessed by reference to factors such as the age of students, their particular vulnerability if any, the tasks allocated to teachers, and the number of adults concurrently responsible for the care of students. Furthermore, the nature and circumstances of the sexual misconduct will usually be a material consideration. [56]

60 In contrast to the position taken by the Chief Justice, Gaudron J relied on estoppel. She said:

The only principled basis upon which vicarious liability can be imposed for the deliberate criminal acts of another, in my view, is that the person against whom liability is asserted is estopped from asserting that the person whose acts are in question was not acting as his or her servant, agent or representative when the acts occurred. And on that basis, vicarious liability is not necessarily limited to the acts of an employee, but might properly extend to those of an independent contractor or other person who, although as a strict matter of law, is acting as principal, might reasonably be thought to be acting as the servant, agent or representative of the person against whom liability is asserted.[57]

61 After referring to Salmond's proposition[58] - that an act is done in the course of employment if it is a wrongful act authorised by the employer, or a wrongful and unauthorised mode of doing an unauthorised act - Gummow and Hayne JJ said that:

The notion of an unauthorised mode of doing an authorised act has evident difficulties in application. Especially is that so when the conduct of which complaint is made is, as in these cases, the commission of a criminal offence.[59]

... are important for present purposes. First, vicarious liability may exist if the wrongful act is done in intended pursuit of the employer's interests or in intended performance of the contract of employment. Secondly, vicarious liability may be imposed where the wrongful act is done in ostensible pursuit of the employer's business or in the apparent execution of authority which the employer holds out the employee as having.

What unites those elements is the identification of what the employee is actually employed to do or is held out by the employer as being employed to do. It is the identification of what the employee was actually employed to do and held out as being employed to do that is central to any inquiry about course of employment. Sometimes light may be shed on that central question by looking at a subsidiary question of who stood to benefit from the employee's conduct. But that inquiry must not be permitted to divert attention from the more basic question we have identified.[60]

62 Each of the leading Canadian, English and Australian cases discussed in this judgment were concerned with indecent assaults by teachers upon pupils in their charge. Mr Blake's claim again J R Perry Nominees Pty Ltd arose out of different circumstances. So, in the case of Deatons Pty Ltd v Flew,[61] did Mark Flew's claim for the loss of his sight in one eye.

63 Mr Flew was a customer in a hotel run by Deatons Pty Ltd. Differences arose between him and a barmaid, Mrs Barlow. She threw the contents of a glass of beer in his face. The glass followed. She said it slipped. Two witnesses said that they saw her, in two definite movements, throw the beer first and after that the glass. It was the blow from the glass which injured his eye.

64 The High Court held that Deatons Pty Ltd was not vicariously liable for the barmaid's assault. Dixon J said that in his opinion it was clear that, upon the case made for Mr Flew:[62]

... a finding could not be supported that the barmaid acted in the course of her employment so that the defendant company would be vicariously liable.

For upon the plaintiff's case the assault was as unexplained as it was unprovoked and might have proceeded from private spite on the part of the barmaid or from some other cause quite unconnected with her occupation or employment.

65 Later in his judgment, his Honour considered the suggestion that the barmaid's action was connected with her part in keeping order in the bar. It was not a suggestion which found favour with the judge. In commenting upon it, he said:

She did not throw the beer or the glass in the course of maintaining discipline or restoring order. Moreover she was not in charge of the bar. Over her there was another woman who was behind the same bar, and, it may be added, who at once said 'You wicked girl.' In the saloon bar close at hand was the publican.

The general and somewhat indefinite position was relied upon that the barmaid was there to deal with customers and with situations and this was the manner in which she dealt with the plaintiff and the situation which he caused. It is not a case of a negligent or improper act, due to error or ill judgment, but done in the supposed furtherance of the master's interests. Nor is it one of those wrongful acts done for the servant's own benefit for which the master is liable when they are acts to which the ostensible performance of his master's work gives occasion or which are committed under cover of the authority the servant is held out as possessing or of the position in which he is placed as a representative of his master ...

The truth is that it was an act of passion and resentment done neither in furtherance of the master's interests nor under his express or implied authority nor as an incident to or in consequence of anything the barmaid was employed to do. It was a spontaneous act of retributive justice. The occasion for administering it and the form it took may have arisen from the fact that she was a barmaid but retribution was not within the course of her employment as a barmaid.[63]

66 The action of Mr Jones in hitting Mr Blake and thus causing his near collapse was done neither in furtherance of the interests of J R Perry Nominees Pty Ltd nor under its expressed or implied authority. Nor was it an incident to or in consequence of anything Mr Jones was employed to do. It was a spontaneous act of a prankster. No proper thought was given to it. The occasion for the prank, and the form it took, may have arisen from the fact that Mr Jones was a truck driver employed by the defendant; but a prank of this kind, generated wholly within the confines of Mr Jones' brain, was not within the course of his employment as a truck driver.

67 If the case of Deatons Pty Ltd v Flew were the last word on vicarious liability, Mr Blake's claim would surely be dismissed. An attempt was made to distinguish his position from that of Mark Flew by relying upon the difference between a spontaneous act of retributive justice and an act which was the result of boredom and frustration. But even were there evidence that Mr Jones suffered from boredom (and the judge found there was none) the distinction is irrelevant. For it seems to me that no matter which of the several tests one might apply when seeking to ascertain whether vicarious liability arises, Mr Blake passes none of them. If, as McLachlin J suggested in Bazley, the test is whether the wrongful act is sufficiently related to conduct authorised by the employer to justify the imposition of vicarious liability, then the answer in Mr Blake's case must be no. There was, in his case, no significant connection between the creation or enhancement of the risk of a Jones prank and the wrong that accrued from it on the one hand, and Mr Jones' employment by J R Perry Nominees Pty Ltd on the other. Hence the Canadian test is not satisfied.

68 If, on the other hand, the test is that propounded by Lord Steyn, and one must ask whether Mr Jones' action was so closely connected with his employment that it would be fair and just to hold the defendant vicariously liable, then the answer again must be no.

69 The test propounded by Gaudron J is equally unhelpful to Mr Blake. The person against whom liability is asserted (J R Perry Nominees Pty Ltd) is not estopped from asserting that in acting as he did Mr Jones was not acting as the defendant's servant, agent or representative. Nothing in the evidence before the judge indicated that the defendant had in any way given its imprimatur to pranks of this kind. A link between such a prank and scratch games of football or cricket in the defendant's trucking yards is simply too tenuous to be entertained as a basis for an estoppel of the kind which Gaudron JA had in mind.

70 The same result is reached if one turns to the test favoured by Gummow and Hayne JJ. Mr Jones' wrongful act was not done in intended pursuit of the interests of J R Perry Nominees Pty Ltd, or in intended performance of the contract of employment by which each was bound. Nor was Mr Jones' wrongful act done in ostensible pursuit of the defendant's business or in the apparent execution of authority which J R Perry Nominees Pty Ltd held out Mr Jones as having.

71 The appellant seeks, by reference to what he maintains was the boredom which was the basal cause of Mr Jones' action, to distinguish this case from those in which vicarious liability was found not to exist. There are, in my opinion, two problems with this. First, the trial judge found no evidence that boredom was the precipitation factor in what Mr Jones did.

72 That finding, the appellant submits, was not open on the evidence because boredom is all that is left to explain Mr Jones' behaviour. In any event (the submission put by the appellant continues) there was evidence of general boredom, and Mr Jones was part of that general scene. As the appellant told the trial judge, 'By this stage of the game everyone was getting a bit bored.' When in cross-examination he was asked about this, he responded: 'That sums it up, yes.'

73 The appellant also asks this Court to infer that Jones' actions were the product of employment-related boredom and frustration. Doubtless an element of boredom was present. But it is necessary to go a further step, and conclude on the balance of probabilities that it was this factor which induced Mr Jones to strike the appellant as he did.

74 Some of the facts from which the inference is sought to be drawn clearly do not support it. For example, the appellant seeks to place in the list of relevant factors the lack of shower facilities at the wharf; the fact that the night before the men slept in the cabin of their trucks; the fact that notice of the delay was first given at one point in the morning (10.30), while a second notice - of a further delay - was given in the afternoon (at 2.00); and the fact that the drivers were not told that they could not play football in the interim.

75 Other matters to which the appellant points are more readily available in support of the inference he seeks to have drawn in his favour. First, the wait was a long one. Both the appellant and Jones had been waiting for some 18 hours after their arrival at the Portland wharf. They were not accustomed to waiting that long, because this was not a common feature of their work. Access to facilities such as a lunch room was very limited. Secondly, there was not much to do; indeed, the only real distraction was a walk into the centre of the town.

76 These, however, do not connect such boredom as Mr Jones may have felt with the attack upon the appellant. That is something which might have been perpetrated on the spur of any moment, including one of excitement or elation.

77 The strongest point in favour of the appellant's argument about boredom as the motive for the assault on him is the simplest. It is likely that, by mid afternoon, Mr Jones was at least somewhat bored; and if he was, the attack on the appellant occurred during a period of boredom. That being so, one may perhaps infer that boredom was a precipitating factor. I am prepared, on the authority of Warren v Coombes,[64] to assume that that was the case.

78 That brings me, however, to the second of the two problems with the appellant's submission that his boredom distinguishes his case from others in which vicarious liability was not made out. It is that, as it seems to me, the state of mind or motive of the wrongdoer is irrelevant to the question of vicarious liability except where he or she is seeking to advance the interests of the employer. It is true that, in Deatons Pty Ltd v Flew, Dixon J referred to the possibility that the barmaid acted out of private spite. He also relevantly linked that spite with 'some other cause quite unconnected with her occupation or employment.' But that, I think, was to make the point that a 'private' motive, unconnected with the employment of the wrongdoer, is not sufficient to create vicarious liability in the employer. And the motive for Mr Jones' attack on the appellant, or his state of mind at the time, was no less 'private' in this case than it was in the case of Mrs Barlow. Both were, at the relevant time, 'at work'. Both were, we may assume, frustrated (the appellant submits that Mr Jones

was both bored and frustrated). If the actions of the one did not give rise to a claim in vicarious liability, I cannot see how the actions of the other would support such a claim.

79 Following a survey of the Canadian, English and Australian authorities concerning vicarious liability, Professor Paula Giliker of the University of Bristol submitted:

that vicarious liability should be imposed for intentional torts only where the employee is engaged to perform duties of a protective or fiduciary nature which safeguard the interests of the employer or others. ... Vicarious liability for intentional torts should therefore only arise where the employee is entrusted with a protective or fiduciary discretion, that is, where the employee is entrusted to protect the employer's property, customers, employees, or specific individuals for which the employer has taken responsibility. If this requirement is satisfied, then the courts should examine whether the act in question was undertaken in the purported exercise of these duties. Put simply, the new test will provide a more structured approach to the question of vicarious liability for intentional torts by focusing on the protective discretion given to the employee.[65]

80 In my opinion the position taken by the Professor is worthy of serious consideration. That is a question for another day. For the present, it may simply be observed that, were this test to be applied in this case, Mr Blake's claim would fail it too.

81 For these reasons, the appeal must be dismissed.

82 I have had the benefit of reading the reasons in draft of Harper JA. I agree with those reasons and his Honour's conclusion that the appeal should be dismissed.

83 In his amended statement of claim, the appellant Mr Blake alleged that on or about the 16 October 2001 while in the course of his employment by JR Perry Pty Ltd at the Portland Wharf, a fellow employee of JR Perry, Mr Lindsay Jones, in the course of his employment at the Portland Wharf, ran into or knocked the back of Mr

Blake's knees as a result of which Mr Blake buckled and almost fell to the ground and thereby suffered a severe injury.

84 Mr Blake claimed damages from his employer, the respondent JR Perry, alleging that JR Perry was negligently responsible for the injury Mr Blake suffered and also claimed damages against JR Perry, who was also Mr Jones employer, on the basis that JR Perry was vicariously liable for the actions of Mr Jones.

85 The learned trial judge found that JR Perry was not directly liable to Mr Blake in negligence. His Honour also found that JR Perry was not vicariously liable to Mr Blake for the actions of Mr Jones. Mr Blake has appealed against the latter decision.

86 The trial judge accepted that Mr Jones' motivation for his assault on Mr Perry constituted a prank but that it was nonetheless 'a deliberate and intentional application of force which produced an injury.' His Honour continued '[t]he circumstances surrounding the incident, in my view, leave open no other conclusion. Mr Jones actions constituted assault and battery at common law and common assault with the meaning of s 23 of the Summary Offences Act.'

87 His Honour accepted that a number of activities, such as playing football or cricket, may have formed part of the waiting tasks that may have been impliedly authorised by an employer whilst its employees waited at the Portland Wharf. His Honour held, however, that 'there is, in my view, no warrant to conclude that an unlawful act of striking a fellow employee is within that employee's implied authority.'

88 In my view, his Honour's analysis of the law and facts was correct. In my opinion, he correctly dealt with and rejected the skylarking or clowning arguments mounted on Mr Blake's behalf and correctly found that Mr Blake had not made out his claim against JR Perry based on vicarious liability for the assault of Mr Jones on Mr Blake.

[1] [2003] HCA 4; (2003) 212 CLR 511, 619 [322] ('Lepore').

[2] Dubai Aluminium Co Ltd v Salaam [2002] 2 AC 366 at 376 [16], 376 [18], 397 [112]; cf at 377 [24].

[3] Lister [2002] 1 AC 215 at 230 [28].

[4] (1999) 174 DLR (4th) 71.

[5] Bazley v Curry (1999) 174 DLR (4th) 45.

[6] [2006] HCA 19; (2006) 226 CLR 161, 166-7 [11] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).

[7] [1840] EngR 182; (1840) 6 M & W 499.

[8] Lepore [2003] HCA 4; (2003) 212 CLR 511, 582, [202] (Gummow and Hayne JJ); 617, [316]-[317] (Kirby J). See also Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21, 40 and Bazley v Curry (1999) 174 DLR (4th) 45, [34]-[35] (McLachlin J).

[9] Of course the injured employee in this case would have been entitled to statutory benefits under the Accident Compensation Act 1985.

[12] Note, however, the criticisms of the use of this rationale in cases where the act of the employee is intentionally wrongful: Lepore [2003] HCA 4; (2003) 212 CLR 511, 556 [113] (Gaudron J), 587-8, [218]-[219] (Gummow and Hayne JJ).

[13] Lepore [2003] HCA 4; (2003) 212 CLR 511, 614 [306] (Kirby J). See also 580-1, [197] (Gummow and Hayne JJ).

[14] [2004] UKPC 47 ('Bernard').

[15] There was no evidence as to whether or not he was off-duty, but the Board assumed in favour of the Attorney-General that this was the case.

[16] On this issue see particularly Lepore [2003] HCA 4; (2003) 212 CLR 511, 540 [53] (Gleeson CJ).

[18] [1912] UKHL 1; [1912] AC 716.

[19] [1966] 1 QB 716. The principle articulated by Lord Diplock at 737 was applied in Capricorn Financial Planners Pty Ltd v Australian Securities and Investment Commission [1999] FCA 558; (1999) 31 ACSR 46, 50. See also Ffrench v Sestili [2007] SASC 241.

[20] Bazley v Curry (1999) 174 DLR (4th) 45, [24] (McLachlin J).

[21] Trevor Charles Blake v J R Perry Nominees Pty Ltd [2010] VSC 272 ('Reasons'), [32].

[23] (1991) Aust Torts Reports 81-071, 68,563. In that case, the question was whether one partner was to be held liable for the negligent acts of another partner.

[24] Kirby P and Priestley JA concurring.

[25] Compare the remarks of Heydon JA (as he then was) in Macquarie Area Health Service v Egan [2002] NSWCA 26, [42]. In that case, it was held that the employer was directly negligent because of a failure to direct staff not to engage in horseplay, when they had done so on some occasions. Heydon JA found it unnecessary to consider whether the employer could also have been held vicariously liable. Sheller JA agreed with Heydon JA and Powell JA dissented.

[26] [1949] HCA 60; (1949) 79 CLR 370.

[28] [1966] VicRp 28; [1966] VR 202, 211-2.

[29] Compare also Martin v Bailey (2009) 26 VR 270, where a majority of this Court held that a man's injury arose out of his employment, thus disqualifying him from commencing a personal injury claim under s 134AB of the Accident Compensation Act 1985, even though the worker's injury arose as a consequence of him making a racist remark against his neighbour, in the context of a dispute about the place where the worker had chosen to unload hay. See also Appendix A to the judgment. It should be noted, however, that cases dealing with the question whether an employee was acting in the course of employment for the purposes of workers' compensation cannot be directly applied in the context of vicarious liability: see Kavanagh v Commonwealth [1960] HCA 25; (1960) 103 CLR 547, 556-7 (Dixon J).

[30] (1986) 5 NSWLR 218.

[32] Lepore [2003] HCA 4; (2003) 212 CLR 511, 544-5, [67]-[69] (Gleeson CJ).

[33] Ibid 616-7, [315]-[318] (Kirby J). See also 561, [131] where Gaudron J regarded the 'close connection' between what the employee was engaged to do and what was actually done as relevant in deciding whether an employer should be liable for an employee's criminal acts, although her Honour held that the imposition of vicarious liability on the employer in these circumstances could only be based on estoppel.

[35] New South Wales v Lepore, Samin v Queensland, Rich v Queensland [2003] HCA 4; (2003) 212 CLR 511.

[37] [1912] UKHL 1; [1912] AC 716.

[38] State of New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511, 588 [222] (Gummow and Hayne JJ).

[39] Ibid [223]; Deatons Pty Ltd v Flew [1949] HCA 60; (1949) 79 CLR 370.

[40] John W Salmond, The Law of Torts (Stevens and Hayes, 1st ed, 1907) 83, s 29.

[41] [1999] LGR 584.

[43] Bazley v Curry (1999) 174 DLR (4th) 45; 1999 Can LII 692 (SCC); [1999] 2 SCR 534 ('Bazley').

[44] Lister v Hesley Hall Ltd [2002] 1 AC 215, 230 ('Lister').

[48] [2003] EWCA Civ 887; [2004] 4 All ER 85.

[52] [2006] EWHC 3041 (QB).

[53] [2006] EWHC 3041, [22].

[55] [2003] HCA 4; (2003) 212 CLR 511.

[58] John W Salmond, The Law of Torts (Stevens and Hayes, 1st ed, 1907) 83, s 29.

[59] [2003] HCA 4; (2003) 212 CLR 511, [236].

[60] Ibid [231]. (Emphasis as in the original).

[61] [1949] HCA 60; (1949) 79 CLR 370.

[64] [1979] HCA 9; (1979) 142 CLR 531.

[65] P Gilliker, "Making the right connection: Vicarious liability and institutional responsibility", (2009) 17 Torts Law Journal 35, 53-54.