Plaintiff v Defendant

Supreme Court of Victoria|2010-06-18|Before: J FORREST J

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.

1 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.

2 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.

3 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]

4 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.

5 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 Blake, admitted that Mr Murray was present at court on 27 May 2010.

6 Mr Blake was born on 27 January 1949 and raised at Goroke, which is west of Horsham. At the time of the incident he was 52 years of age.[2] He was educated to the age of 14. After a variety of short term jobs he commenced work driving a gravel truck and since his late teens has been a truck driver.

7 Apart from a period of approximately five years when he operated his own business, he has worked as an employee driver for trucking companies based in Horsham. Prior to taking on the job at Perry in 1998, Mr Blake had worked at Mellon Freightlines at Horsham driving a B-double unit. When Mellon was taken over by Perry, Mr Blake transferred his employment to that company.

8 The late Mr Roger Perry was the driving force behind Perry which operated, in 2001, 18 or 19 trucks from its Horsham depot.[3] His son Dean operated the workshop and Mr Murray was the Depot Manager.

9 Mr Blake commenced employment with Perry on 1 November 1998. Initially he was employed carting grain but within a relatively short time he was transferred to a better remunerated job driving a tanker. In the early months of 2001 Perry purchased a new Mack prime mover and tanker trailer and assigned the rig to Mr Blake.

10 In 2001 the duties of a tanker driver required the driving of the prime mover and tanker from the Horsham depot on Sunday afternoon to either the Caltex or BP depots in Spotswood. The tanker would then be fuelled and taken to its destination which could be anywhere in the State - for instance, to Mildura or back to Portland. Mr Blake would then, until the Saturday morning, convey fuel loads from the Spotswood depots to the particular destinations, sleeping overnight in the prime mover.[4] On odd occasions he would be able to stay at home if the destination involved travelling through Horsham.

11 Mr Blake explained that whilst he was invariably required to spend five nights away from home, the demands of the job varied depending on the particular time of the season. In particular, during harvesting or sowing seasons in the Wimmera there was considerable demand for Perry's services. In the down time at the depot when there was less pressure, the employees would engage in a variety of recreational pursuits, such as cricket or football at the depot. However, as a tanker driver he was not required to stay at the depot and, I infer, spent only a small amount of time at the depot.

12 Mr Blake also said that no instruction was ever given by Perry in relation to limits on the playing of games at the depot.

13 Mr Jones also lives in Horsham and has been employed from time to time in the transport industry. Mr Blake, who has known Mr Jones for many years, described him as being around 60 years of age at the time of the incident.[5] Mr Jones had been employed by Perry for several years and had never behaved in an untoward way towards Mr Blake in the past. There was no history of animosity or bad blood between them.

14 Perry had been contracted to provide three tankers to refuel a survey vessel due to dock at the Portland wharf on 16 October. The only instructions given to Mr Blake by Perry related to picking up the fuel from Spotswood on Monday 15 October 2001, and transporting it to Portland and then waiting for the vessel to dock. Mr Blake and Mr White had been told by the Perry office that the vessel would dock at some time between 10.00am to 11.00am the next morning.[6]

15 Mr Blake had not refuelled a vessel in this way. However, Mr White had carried out this debunkering operation on several occasions.[7] He explained that the waiting period for a vessel could vary considerably, depending upon the conditions at sea. Sometimes it may take two hours, but on occasions (such as occurred here) it could be the next day or the next night. This was to be contrasted with the standard fuel delivery which would take approximately an hour for unloading.

16 On the evening of Monday 15 October Mr Blake, perhaps in the company of Mr White, set off from the Caltex depot at Spotswood for Portland, each with a full load of fuel.[8] I say perhaps because Mr White's recollection was that he travelled to Portland on his own and met Mr Blake at the wharf. Nothing turns on this.

17 Mr Blake's tanker left BP Spotswood depot at around 5.00pm and arrived at Portland at 9.00pm.[9] Another tanker, driven by Mr Jones, also arrived at the Portland wharf in the course of the evening. Mr Blake and the other two drivers slept in their trucks overnight.[10] At approximately 7.30am, the drivers were told that the trucks needed to be moved and Mr Blake and the others shifted the tankers to their correct position.[11]

18 At approximately 10.30am a phone call was received from the Perry office advising the drivers that the vessel would not dock until after lunch.[12] Mr Blake thinks that he may have had a kip in the truck after this call came through.

19 During the course of the morning of 16 October Mr Blake and his fellow drivers made at least one,[13] and perhaps a couple, of trips (by foot)[14] into Portland, and upon their return they continued to await the arrival of the vessel.

20 Early in the afternoon, at about 2.00pm, another phone call was received from the Perry office advising that the vessel's arrival time had again been postponed and it was not due until the evening. There was then discussion, probably between Mr White and Mr Roger Perry, as to payment for the length of time that the drivers had been waiting. Mr Perry agreed to pay the drivers an additional $50 for waiting time.

21 In the mid-afternoon Mr Blake and Mr White walked down the wharf where the vessel was due to dock. They had walked about half way down the wharf, a distance Mr Blake described as 250 yards, and had stopped to look at either seals or porpoises. In answer to his counsel Mr Blake described what happened in the following terms:

Yes, I think it was 2.00 2.30 something like that, we were told that the boat wouldn't be in until late afternoon towards evening, and Daryl White and myself were just standing on the wharf. I can't remember now whether we were watching a porpoise or a seal or watching something bounce about out in the bay anyway, and the next thing I know I get this whack behind my knees and Daryl was on my right-hand-side and I went down to the pavement, I grabbed hold of Daryl's shoulder - I would have went - hit the deck. It was sort of sudden, and severe, and totally unexpected. It just came out of nowhere.

So there was no build up to this event?---No, no, no.

When you were talking to Daryl, were you aware of anyone else in the vicinity?---No, I had no idea that Lindsay Jones was behind me.[15]

(emphasis added)

Were you able shortly afterwards to work out what had happened to you?---Yes, when I straightened up I turned around, Jones is behind me laughing, thought it was a hell of a joke, and I threw a few choice words at him, and yes, it initially hurt my back when he done it, it was just like someone stuck a knife in it. But then it settled, seemed to settle down. It niggled me from then on, but - for the rest of the day, but yes, when he did it I turned around and, as I say, I threw some words at him and he did apologise. I said 'you crazy dickhead, you should know better' you know.

22 Immediately prior to the incident Mr Blake was not aware of Mr Jones' presence.[16] When he turned around after having been struck he saw Mr Jones who was laughing. Although he did not see Mr Jones make contact with him, he said that he was fairly certain that it was Mr Jones' knees that struck his. He reaffirmed that he was hit hard.

23 Mr White described the incident in the following terms:

Me and Blakey were standing on the wharf looking out into the sea and Blakey was standing on my side, and then I noticed Blakey sort of half-dropped, he didn't drop to the ground or anything, just sort of half-dropped, said a few chosen words, and had a bit of a dig at Jonesy about what happened.

The above, in effect, was the extent of Mr White's recollection of the incident. He could not remember Mr Blake grabbing hold of his shoulder. Mr White confirmed that he did not see Mr Jones make contact with Mr Blake but appeared to have a clear recollection of Mr Blake half-dropping.[17]

24 According to Mr Blake, after he had given Mr Jones a piece of his mind, Mr Jones apologised saying:-

On Mr White's account, Mr Blake said the following to Mr Jones:

Along the lines of 'it wasn't appreciated thanks a lot' kind of thing. They had a few chosen words between themselves, and that was what sort of happened.[19]

25 Mr Blake was adamant that the attack was not the product of animosity on the part of Mr Jones and that this was simply a prank on Mr Jones' part. He described Mr Jones' actions as, "stupid", "a brain fade",[20] and in cross-examination Mr Blake agreed that Mr Jones' behaviour was "totally out of order" and was, as far as he could tell, a deliberate action.[21]

26 Mr Blake's back became sore virtually directly after the incident. He went and lay down in the cabin of his prime mover. The vessel then arrived in the late afternoon and he drove his rig to the fuelling point on the wharf. Mr White's tanker unloaded first, followed by Mr Blake's. He did not have to assist in the refuelling which was carried out by others. He, with the other drivers, then had a meal on the vessel.

27 Having completed the bunkering process, Mr Blake was required to return to the Spotswood depot and then to go on to Swan Hill. He drove to Stoney Rises, between Camperdown and Colac where he stopped and, because of his back, had trouble alighting from the truck. He had similar trouble at Spotswood but then proceeded to Marong where he slept the night. In the morning his back pain had become worse. He drove on to Bridgewater but could go no further. He telephoned his wife and the Perry office to try and organise for the tanker to be taken on to Swan Hill and for his return to Horsham. Fortunately, an interchange was arranged and he was able to drive back to Horsham whilst his load was taken by another driver on to Swan Hill.

28 At the Perry depot at Horsham Mr Blake was met by his wife and he explained his predicament to Mr Murray. That day, Wednesday the 23rd, he went to see the chiropractor, Mr Ayre. Subsequently he attended his local clinic, Lister House, and his condition has been managed since that time by doctors at the clinic. It is not necessary, given the agreement as to quantum, to detail his progress since that time other than to note that Mr Blake has undergone two operative procedures on the L4/5 disc and left nerve root and currently wears an electrical stimulator to relieve his back symptoms. He still has considerable symptoms from the injury and it was not an issue that since June 2006 he has been unable to work.

29 I accept the evidence of Mr Blake whom I regarded as a reliable and truthful witness. The following are my findings of fact:

(a) Both Mr Blake and Mr Jones were at the wharf awaiting the arrival of the vessel in the course of their employment with Perry;

(b) As at October 2001 Mr Blake was 52 years of age and Mr Jones was about sixty years of age;

(d) The waiting on the wharf during the course of the morning and the afternoon was part of the employment duties of both Mr Blake and Mr Jones;

(e) Without warning, Mr Jones forcefully struck Mr Blake's knees from behind, probably by digging his knees into Mr Blake's knees;

(f) Mr Jones' actions were intentional, but I infer, they constituted a prank with no intention to cause serious injury to Mr Blake;

(g) Mr Jones striking of Mr Blake occurred approximately 18 hours after Mr Blake's arrival at the wharf;

(h) There was no bad blood or animosity between Mr Blake and Mr Jones, rather as I have concluded, Mr Jones' actions were, as Mr Blake surmised, a prank;

(i) Mr Jones had no express authority from Perry to inflict injury on or assault to Mr Blake.

30 I should add that there is no evidence that Mr Jones had engaged in spiteful or skylarking behaviour in the past.

31 I did not understand there to be any issue in relation to these findings. However, there were three discreet matters upon which the parties were in disagreement as to appropriate findings to which I now turn.

32 First, Mr Blake's contention that I should conclude that Mr Jones' actions in striking Mr Blake were the product of boredom whilst waiting on the wharf. Indeed, it was put by Mr Blake's counsel that this was the only conclusion open to me. I am afraid that I disagree. At the time of the incident the delay of the arrival of the vessel was approximately five hours (i.e. between roughly 10.00am to 3.00pm). 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.

33 Counsel for Mr Blake relied upon the failure of Perry to call Mr Jones to prove this point. However, even if one accepted that Mr Jones was "in the camp" of Perry and could be expected to be called, the inference that his actions were the product of boredom may only be drawn where there is evidence upon which such an inference can be drawn. A Jones v Dunkel[22] inference cannot provide the foundation for speculation. Here, as I have said, there is no evidence available upon which to found such an inference. Moreover, the actions of Mr Jones, as I will discuss in a moment, do not smack of some playful lark bred of boredom, rather this appears to have been a sharp and deliberately calculated attack upon Mr Blake. I accept Mr Blake's own description of Mr Jones' actions as being "stupid" and "out of order".

34 Secondly, I was urged by counsel for Mr Blake to conclude that Mr Jones' actions did not constitute an assault, contrary to the criminal law, and rather should be looked at as mere skylarking of a playful nature. I do not accept this submission.

35 In ACN 087 528 774 Pty Ltd v Chetcuti,[23] Hargrave AJA, with whom Ashley and Dodds-Streeton JJA agreed, said as follows of the torts of assault and battery:

The torts of assault and battery involve the intentional touching of a person without his consent. There can be assault alone by intentional acts creating apprehension of imminent physical attack or harm, and it becomes battery if the offensive acts make contact with the other person. Intention to harm need not be proved, however an intentional act that creates the apprehension of harm, or which constitutes the battery, is required. [24]

36 The account given by Mr Blake, which I have set out, is of an unprovoked, deliberate blow of some severity - enough to cause him to fall towards the ground where, without the assistance of Mr White, he would have ended up. His description of the blow is that it was sudden, severe: "he hit me hard".[25] Whatever Mr Jones' motivation (and as I have said, I accept that it constituted a prank as demonstrated by Mr Jones' immediate reaction) it was nonetheless a deliberate and intentional application of force which produced an injury. The 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 within the meaning of s 23 of the Summary Offences Act.

37 Thirdly, I was urged to conclude that Perry took no disciplinary action in relation to Mr Jones' behaviour. This was said to be relevant to the context in which to view Mr Jones' actions. There is no direct evidence of what Perry did or did not do as a result of Mr Jones' behaviour, other than to receive a claim for worker's compensation of 22 October completed by Mr Blake and detailing his allegations against Mr Jones.[26] Nor do I think a Jones v Dunkel inference can be drawn as to the lack of such action. It can be readily inferred from the claim form that Mr Murray was aware of the incident by late October 2001. Mr Murray is clearly a witness in Perry's camp (indeed to the extent of attending court on behalf of Perry) and was not called. However the asserted inference cannot be drawn in a vacuum. There is no evidence whatsoever relating to disciplinary steps or absence of them, nor evidence upon which I could draw such an inference. I accept counsel for Perry's submission that to draw such an inference would amount to speculation. Simply put, the evidence does not enable me to draw a conclusion one way or another.

38 The particulars of negligence ultimately relied upon by Mr Blake were as follows:[27]

(l) Requiring or permitting the Plaintiff and his fellow employees to remain upon the said wharf for an excessive period of time.

(n) Failing to make any or any appropriate arrangements for the Plaintiff and his fellow employees in respect of the prolonged waiting period required and/or expected of them at the said wharf.

(r) Instructing the Plaintiff and his fellow employees to remain at the said wharf in the circumstances.

(s) Requiring or permitting the Plaintiff and his fellow employees to remain on duty for an excessively long period.

(t) Failing to properly monitor the anticipated arrival time of the ship.

(u) Failing to devise, implement and enforce appropriate arrangements to counter boredom, frustration and tiredness on the part of its employees at the wharf.

39 To unload fuel was part and parcel of the everyday activities of the Perry employees as Mr Blake accepted when cross-examined. Even allowing for the fact that this was a long wait, there was nothing unreasonable on the part of Perry in requiring the drivers to do so. The assertion that Perry should have made some sort of provision for its three employees to relieve their boredom whilst waiting for five or so hours after the anticipated time of arrival is, in my view, close to absurd (indeed it was suggested that Perry should have arranged activities such as the playing of golf or a visit to the cinema whilst an additional employee attended the wharf to guard the trucks).[28] Each of Perry's employees were 50 years of age or over (I have taken an educated guess as to Mr White's age) and none had shown any tendency for abnormal conduct in the past. They were not 17-year-old apprentices with a history of ill-disciplined behaviour. In the absence of any known proclivity to the contrary, grown men can be reasonably expected to behave in a sensible and mature fashion notwithstanding that their "ship has not come in".

40 In any event, it was not the waiting or the delay of the vessel that led to Mr Blake's injury, it was the action of Mr Jones. Indeed, Perry could hardly be expected to foresee (as set out in Wyong Shire Council v Shirt[29] and explained in Vairy v Wyong Shire Council[30]) that the waiting at the wharf would result in an injury to Mr Blake as the victim of an assault by a fellow employee. Even if I had accepted that Mr Jones' actions were the product of boredom, consequent upon waiting, I think it hardly likely that an employer would foresee that a mature-aged employee would resort to an attack upon a fellow employee to vent his frustration at waiting for an overdue ship.

41 In light of the manner in which Mr Blake suffered injury and the evidence as to the nature of the bunkering operation, the claim in direct liability, is in my view, untenable.

42 I do not accept that Perry is directly liable to Mr Blake.

Vicarious liability of Perry for Jones' actions

43 The vicarious liability of an employer for the actions of an employee has been the subject of considerable judicial scrutiny in recent times; in this country by the High Court in three decisions; Hollis v Vabu Pty Limited[31] ("Hollis") Scott v Davis[32] - (an agency case) and New South Wales v Lepore ("Lepore").[33]

44 Different approaches have emerged in other Commonwealth countries where courts have shifted from the traditional test of whether the wrong was committed in the course of employment to a test of whether there is a sufficiently close connection between the employment and the tort. In Canada, the close connection test was adopted in Bazley v Curry,[34] and in the United Kingdom in Lister v Hesley Hall Ltd.[35] There has also been a proliferation of monographs on the topic.[36]

45 It is noteworthy that in Hollis, the High Court commented upon the lack of "fully satisfactory rationale"[37] for the imposition of vicarious liability in an employment relationship and noted that the development of the concept of vicarious liability has been by way of "an exercise of analytical jurisprudence but as a matter of policy".[38]

46 Notwithstanding these cautionary words, the starting point in this country remains relatively straightforward. An employer is vicariously liable for a tort or other actionable wrong committed by an employee in the course of employment.[39] However, that liability can only be made good if the act complained of is demonstrated as being within the scope of the employee's authority either as an act he or she was employed to perform or an act which was sufficiently incidental to employment to be regarded as within its scope.[40]

47 In determining an employer's liability for the unauthorized acts of employees, Courts have, on occasions referred to the line which must be drawn to delineate actions of employees which result in vicarious liability and those which are solely personal to the alleged perpetrator of the tort or wrong.[41]

48 In this case, the question is whether, in the broad context of Mr Jones' duties, his conduct in striking Mr Blake falls inside the vicarious liability line. Counsel's submissions primarily focused on three decisions of the High Court, namely Bugge v Brown, ("Bugge")[42], Deatons Pty Ltd v Flew ("Deatons") and Lepore. My attention was also directed to several decisions involving assaults by or skylarking of employees, as well as a number of decisions of intermediate Courts of Appeal which have considered the reasoning in Lepore.

49 The defendant, Mr Brown, was the owner of grazing land and employed a Mr Winter to work on his property cutting thistles. As part of Mr Winter's salary package (as it would be described these days) he was provided with lunch which he was instructed to prepare and cook at a particular dwelling on Mr Brown's property. Contrary to his employer's instructions, Mr Winter lit a fire at a different spot. The fire got out of control and extended onto Mr Bugge's property, causing significant damage.

50 The High Court unanimously concluded (overturning the decision of Irvine CJ in this Court) that the lighting of the fire for the purpose of cooking was implicit in furthering Mr Brown's interests as the provision of nourishment was, in effect, a necessary concommitent of his employment enabling him to perform his work cutting thistles in the afternoon. Notwithstanding Mr Winter's defiance of his employer's directions, the act of lighting the fire was found to be for the benefit of his employer and therefore in the scope of his employment.

51 Mrs Barlow was employed as a barmaid by Deatons. At trial, it was not an issue that she threw the contents of a glass of beer at Mr Flew, although whether she threw the glass or whether it slipped out of her hand was a hot topic. The end result was that Mr Flew lost an eye. Mrs Barlow maintained that Mr Flew was drunk and had struck her and that she acted in self-defence. Mr Flew asserted that for some inexplicable reason after asking a polite question of her, Mrs Barlow threw the contents of the glass in his face and then the glass itself. The jury found that both Mrs Barlow and Deatons were liable to Mr Flew. The New South Wales Full Court ordered a re-trial and Deatons and Mr Flew each appealed to the High Court.

52 Underpinning the reasoning of the High Court was the finding, based upon the jury verdict against Mrs Barlow, that she had committed an assault. Latham CJ said:

The liability of the employer depends upon the scope of employment of the barmaid and the authority which her employment conferred upon her, such authority to be exercised on behalf of the employer. An employer is liable for the act of his servant only if the act is shown to come within the scope of the servant's authority either as being an act which he was employed actually to perform or as being an act which was incidental to his employment.[43] (emphasis added)

But throwing beer in the face of a customer simply was not a means of keeping order, nor in my opinion can it be said that such an action is incidental to the work which the barmaid was employed to do. Upon the plaintiff's evidence the throwing of the beer was a gratuitous, unprovoked act which had nothing at all to do with the performance of the duties of barmaid. Upon the evidence given for the defendant the act was an act of personal resentment and was not in any way performed as on behalf of the employer...In my opinion the act of the barmaid was not expressly authorised it was not so connected within the authorised act as to be a mode of doing it, but was an independent personal act which was not connected with or incidental in any manner to the work which the barmaid was employed to perform.[44] (emphasis added)

For upon the plaintiff's case the assault was unexplained as it was unprovoked and might have proceeded from private spite on the part of the barmaid or from some cause quite unconnected with her occupation or employment. So far as the plaintiff's case went to show, nothing occurred which would in any way relate her actions to the duties of her office or explain it by reference to anything incidental to what she was employed to do.[45] (emphasis added)

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 even when they are acts to which the ostensible performance of his master's work gives occasion or which are committed under the 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. (references omitted) 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. (emphasis added)

The responsibility of the appellant for the consequences of the assault depends upon the question whether the barmaid assaulted the plaintiff in the course of fulfilling any duty which the appellant entrusted to her. The assault could not possibly be a matter of fulfilling any duty which the jury was entitled to find the appellant entrusted to the barmaid. There was no evidence that the assault was in the course of employment.[46] (emphasis added)

Williams J, like Gleeson CJ, fifty years later in Lepore,[47] relied upon what was said in Salmond on Torts:[48]

It is clear that the master is responsible for acts actually authorised by him: for liability would exist in this case even if the relation between the parties was merely one of agency and not one of service at all. But a master as opposed to the employer of an independent contractor is liable even for acts which he had not authorised, provided they are so connected with acts that he has authorised that they may be regarded as modes - although improper modes - of doing them. In other words, a master is responsible not merely for what he authorises his servant to do, but also for the way in which he does it. On the other hand, if the unauthorized and wrongful act of the servant is not so connected with the authorized act as to be a mode of doing it, but as an independent act, the master is not responsible for in such a case the servant is not acting in the course of his employment but has gone outside it.[49]

His Honour's judgment concluded with the following remarks:

In the present case, the only reasonable inference from the evidence is that the glass was thrown for a purpose of Mrs Barlow's own and was an independent act on her part not so connected with any act which she was authorised to do as to be a mode of doing it, and not an act of excess and violence in the course of employment not justified by the occasion.[50] (emphasis added)

53 I have extracted significant portions of their Honours' reasons as the facts in Deatons bear a resemblance to those in this case - an unauthorised assault seemingly unrelated to the work duties. Counsel for Mr Blake emphasised that Mrs Barlow's actions flowed from personal vindictiveness on the part of Mrs Barlow towards Mr Flew or, "retributive justice". However, that is to examine the judgement with too narrow a focus. The thrust of each of the judgments is that an unlawful and unprovoked act not connected with the performance of the employee's duties does not fall within the scope of employment (howsoever characterised) so as to render the employer vicariously liable.

54 The judgments in Lepore involved consideration of three separate cases concerning sexual misconduct on the part of teachers and the liability of their respective employers: NSW v Lepore, Samin v Queensland ("Samin"), and Rich v Queensland ("Rich").

55 In Lepore, a seven-year-old student was allegedly physically and sexually assaulted by his teacher during the course of punishment for his alleged misbehaviour. The boy was sent to a storeroom where he was instructed to remove his clothing and was then smacked and indecently touched by the teacher. The trial judge concluded that the assaults were deliberate and isolated acts inimical to the performance of the teacher's duties. In the New South Wales Court of Appeal, the majority held that the school had a non-delegable duty to its pupils and was directly liable to the plaintiff.

56 Samin and Rich were both cases involving strike out applications. In each case the plaintiff was a young girl who asserted she had been sexually assaulted by a teacher during school hours and whilst at school. The Queensland Court of Appeal rejected the proposition that in those circumstances there was a non-delegable duty owed to the girls and struck out the statement of claim.

57 Although the cases were conducted before the respective intermediate Courts of Appeal on the basis of an asserted non-delegable duty owed by the schools to their students, each of the High Court judgments, with the exception of that of McHugh J, dealt specifically with the question of vicarious liability of the school authorities for the actions of their employee teachers.

58 As has been observed by a number of commentators and courts, it is difficult to extract from Lepore a common unifying theme, given the diversity of the judgments.

59 At the heart of Gleeson CJ's decision, is the following passage:

To point to a vivid example of conduct by an employee that is not in the course of employment is a useful method of elucidating the concept, but it may be of limited assistance in resolving difficult borderline cases. It is clear that if the wrongful act of an employee has been authorised by the employer, the employer will be liable. The difficulty relates to unauthorised acts. The best known formulation of the test to be applied is that in Salmond, Law of Torts in the first edition in 1907, and in later editions: 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 wrongful act is not so connected with the authorised act as to be a mode of doing it, but is an independent act.[51] (Emphasis added).

It is the nature of that which the employee is employed to do on behalf of the employer that determines whether the wrongdoing is within the scope of the employment.[52]

60 His Honour held that where there was a sufficiently close connection between the wrongful actions of the employee (including where there was serious misconduct and/or, inferentially, breach of the criminal law), and the employee's tasks then such conduct was to be regarded as occurring in the course of employment.[53]

61 Kirby J was also prepared to adopt the sufficiently close connection test, noting:

that the phrase should be interpreted broadly, viewing the activities of the employment in general terms rather than concentrating only on the particular acts or omissions of the employee in question.[54]

62 Gaudron J concluded that an estoppel may arise in relation to an employer denying vicarious liability where there is a sufficient connection between the actions of the employee and the tasks engaged in on behalf of the employer.[55]

63 In the joint judgment of Gummow and Hayne JJ, their Honours said:

First, Deatons Pty Ltd v Flew establishes that the fact that an intentional tort is committed by an employee while at work and during ordinary working hours will not always suffice to establish vicarious liability. Secondly, the fact that the conduct of which complaint is made constitutes a breach of the law may not suffice to deny vicarious liability. Lloyd v Grace, Smith & Co and Morris v C W Martin & Sons Ltd are often cited in this regard. Lloyd also supports a third proposition. This is that the circumstance that the employee who practises a fraud upon a third party does so for the benefit of the employee not the employer, is no answer to the liability of the employer if the employer, whilst not authorising "the particular act", has placed the employee in a position "to do that class of acts"; the employer then "must be answerable for the manner in which that [employee] has conducted himself. (citations omitted)[56]

Significantly in relation to intentional torts commenced in the course of employment, their Honours said, dealing with the judgment of Dixon J in Deatons:-

Nonetheless, there are two elements revealed by what his Honour said that 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.[57]

Their Honours concluded their analysis with the following proposition:

For present purposes, it is enough to conclude that when an employer is alleged to be vicariously liable for the intentional tort of an employee, recovery against the employer on that basis should not be extended beyond the two kinds of case identified by Dixon J in Deatons: first, where the conduct of which complaint is made was done in the intended pursuit of the employer's interests or in the intended performance of the contract of employment or, secondly, where the conduct of which complaint is made was done in the ostensible pursuit of the employer's business or the apparent execution of the authority which the employer held out the employee as having.[58] (emphasis added)

64 Callinan J concluded that vicarious liability could not attach to an employee's intentional criminal actions. It is on this issue that his Honour was alone. There is nothing in the other judgments of the Court which limit vicarious liability in this way. I take the law to remain that an employer may be liable for the intentional torts of an employee, even where such wrongs amount to criminal conduct, provided that the test for vicarious liability is otherwise established.

65 Although finding overall consensus in Lepore is difficult, in Ffrench v Sestili[59] Debelle JA distilled the following propositions:

The first is that the fact that the employee had intentionally engaged in criminal conduct or other breach of the law may not suffice to deny vicarious liability ... The second proposition is that the fact that the conduct in which the employee has engaged was contrary to instructions given by the employer may not be sufficient to deny vicarious liability.[60]

66 In Ryan v Ann St Holdings,[61] Williams JA sought to bring the various threads together in the following way:

What emerges from the various judgments in Lepore is that the critical test, in broad terms, involves a comparison between the intentional wrongful conduct and the type of conduct the employee was engaged to perform. If there is a "sufficient connection" (Gleeson CJ at [40], [42], [52], [54], [67] and [74]), or a "sufficiently close connection" (Kirby J at [315], [316], [319] and [320]), or a "close connection" (Gaudron J at [131 and [132] and Gummow and Hayne JJ at [213]), it will be open to the tribunal of fact to conclude that the wrongful act was done in the course of employment, albeit in an improper mode. The connection is of critical importance, and as Gummow and Hayne JJ noted at [217] where the opportunity for abuse becomes greater, so the risk of harm of increases. Essentially that means that where an employer clothes an employee with authority which, if abused, could lead to great harm, then (the risk being known to the employer) the easier it will be for a court to draw the conclusion that the wrongful act was done in the course of employment.[62]

67 An employer may be liable for the intentional torts (including criminal acts) of an employee whilst engaged in employment tasks, provided those actions can properly be said to arise out of the tasks the employee is required to perform.

68 An employer will be liable for the actions of an employee committed in the course of his or her employment where those actions are:

(d) so closely connected with the duties and responsibilities of an employee (looked at broadly) as to be regarded as within the scope of employment (which may, in appropriate cases, include the criminal or unlawful acts of the employee which result in injury to a third party).

For the purpose of this analysis I put to one side that class of case involving wrongful acts performed for the employee's own benefit, in respect of which the employer is held liable as it provides the occasion for the employee to engage in the wrongful conduct.[63] The paradigm examples are fraudulent dealing by an employee with the funds of the employer's client.[64]

Did Mr Jones have express authority to act as he did?

69 I mention this only to put it to one side. It was not contended that Mr Jones had any express authority to strike Mr Blake as he did.

Did Mr Jones have implied authority to act as he did?

70 Counsel for Mr Blake contended that an analysis of the circumstances that prevailed at the wharf meant there were a wide range of activities which were within the implied authority of Mr Jones. He put the proposition as follows:

In waiting for the vessel Mr Jones was impliedly authorised to perform any lawful act (which counsel later qualified to mean one that was not in contravention of the criminal law), provided:

(b) It was not inconsistent with what he was employed to do; and

Counsel gave a number of examples of activities that could be regarded as within the implied authority of an employee while waiting for the vessel, such as listening to an iPod or a radio, playing cards, lying down, standing around talking, playing football or cricket as would happen in the depot during downtime. Counsel then argued that Jones' actions in striking Mr Blake could, if regarded as part of a prank (particularly as the product of 'boredom'), be viewed in a similar light and fell within the criteria previously outlined by him and therefore such actions were impliedly authorised.

71 Counsel for Perry contended that Jones' actions were unlawful and, indeed, criminal. Striking a fellow employee without provocation could never be part of a driver's implied authority whilst waiting to deliver a load of fuel. Counsel relied in particular upon the observations of the High Court in Deatons contending that Mr Jones' activities constituted a gratuitous and unprovoked act which had nothing to do with the performance of his duties and were patently outside Mr Jones' implied authority.

72 In my view, counsel for the defendant's submissions should be accepted. Whilst I accept that a number of activities identified by counsel [at 70] formed part of the waiting tasks of an employee impliedly authorised by an employer, 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. One only needs to compare that list of activities with Mr Jones' actions - they are chalk and cheese. Just as Mrs Barlow was impliedly authorised to carry out the tasks associated with a barmaid's duties, that authority did not extend to throwing the glass at Mr Flew. Whether Mr Jones' actions were a prank or not is immaterial, the striking of a fellow employee was not within the purview of Mr Jones' implied authority.

73 Moreover, even if the test laid down by counsel at [70] is correct, Mr Jones' actions were necessarily inimical to Perry's general interests as they prejudiced the health and safety of a fellow worker and rendered it potentially liable to make payments to Mr Blake under the Act.

74 I do not accept that Mr Jones was impliedly authorised by Mr Perry to strike Mr Blake - whatever the motivation.

Were Mr Jones' actions in furtherance of Perry's interests?

75 Counsel for Perry placed considerable reliance upon this proposition as being determinative. He contended that this is an overarching determinant of vicarious liability and is an essential part of the ratio of Lepore. Whether that analysis is right or wrong can be put to one side; what is clear is that an employer can, as has been discussed, be held liable where the impugned activities of an employee are said to further the interests of the employer.

76 In Bugge, Mr Winter's action in lighting the fire so he could consume his meal furthered the interests of the employer as nourishment was part and parcel of his ability to carry out his job cutting thistles in the afternoon. In Deatons, on the findings made by the High Court there was nothing in the actions of Mrs Barlow when she glassed the patron which furthered her employer's interests. Her actions were simply personal and unrelated to her work.

77 Counsel for Mr Blake relied upon a number of decisions subsequent to Lepore dealing with the vicarious liability of an employer for the actions of employee security guards, or bouncers, in relation to injuries inflicted upon patrons.

78 In Starks v RSM Security Pty Ltd,[65] Beazley JA said:

In this case, there was no evidence that Mr Starks acted aggressively towards Mr Wilson. Counsel for the respondents relied upon this as indicating that the assault was unprovoked and had nothing to do with the employment. However, the fact that there was no evidence of aggression or other behaviour that might have provoked Mr Wilson's conduct, whilst relevant, is not determinative of whether Mr Wilson was acting in the course of his employment when he assaulted Mr Starks. Although Mr Wilson's action in head-butting Mr Starks was unreasonable, uncalled for, and not a usual mode for a security officer to use to persuade a customer to leave hotel premises, the fact is, Mr Wilson acted in that way in the course of seeking to have Mr Starks leave the premises. In my opinion, his action was so directly connected with his authorised acts that this case is one that falls on that side of the line that makes the employer vicariously liable.[66] (Emphasis added).

79 In Sandstone DMC Pty Ltd v Trajkovski & Anor,[67] the employer of a bouncer was held liable for injuries inflicted on a patron being removed from the premises. Ipp JA (with whom Handley and McColl JJA agreed), held that on each of the criteria set out in Lepore, the actions of the bouncer were within the scope of his employment. Removing disorderly patrons and persuading them not to return to the nightclub was part of the bouncer's duties and responsibilities, although his actions formed an inappropriate response to the patron's conduct. Secondly, the aim of the bouncer was to ensure that a troublesome patron would go on his way and leave the club vicinity - in carrying out this part of his tasks, he was acting in the intended pursuit of the employer's interests. Thirdly, his Honour concluded that there was sufficiently close causal connection between the acts constituting the injury and the employment itself, which were carried out in the belief that the employer's interests were being advanced.

80 In Zorom Enterprises Pty Ltd v Zabow,[68] the patron was assaulted by a bouncer outside the hotel premises. The plaintiff had previously been removed from the hotel and, with friends, was loitering outside the entrance to the hotel. A bouncer, without provocation, struck the plaintiff, who was engaged in a discussion with the security staff. Basten JA (with whom McColl and Campbell JJA agreed) held that this conduct was within the scope of the bouncer's employment. His Honour concluded[69] that the bouncer's duties included patrolling the area in the vicinity of the hotel to ensure that those who had been ejected did not cause disruption in the neighbourhood. In striking the patron, he was engaged in an unauthorised mode of performing those tasks. Secondly, his Honour concluded that, in seeking to disperse the group, the bouncer perceived that he was acting in furtherance of his employer's interests in ensuring that the area in the vicinity of the entrance to the hotel remained orderly.

81 In Ryan v Ann St Holdings Pty Ltd,[70] a security guard, for no apparent or justifiable reason, punched a patron in the face. Previously, there had been an altercation between a friend of the patron and the security guard. The Queensland Court of Appeal endorsed the finding of the trial judge in concluding that there was a close connection between the assault and the scope of the security guard's employment. The security guard had the power, given to him by his employer, to remove patrons from the premises and, in the use of that power, attacked the patron. The employer was held liable.

82 Each of these cases dealing with the commission of an assault by security personnel in the course of employment highlights the distinction, I think, between their tasks and those of the Perry employees. Security guards are required, as part of their duties, to deal with unruly persons, at times, if necessary, using reasonable force. Acts of aggression towards patrons are not only bound up with their overall duties, but can often be characterised as furthering their employers' general interests. On the other hand, the Perry drivers were employed to deliver fuel to the vessel. Anything reasonably connected with waiting to undertake that task may be regarded as within the scope of employment. Assault of a fellow employee (whether playful, intentional, a prank or arising out of spite) does not further the interests of the employer. Nor, as discussed subsequently, is it sufficiently associated with a waiting driver's duties (no matter how widely viewed) so as to provide a bridge to vicarious liability.

83 Indeed, as I suggested earlier, an attack on a fellow employee was patently contrary to the interests of the employer as it put the welfare of that employee at risk and indeed Perry's economic interests insofar as payments of compensation under the Act may have been attributed to the injury.

Did the actions of Mr Jones have sufficiently close connection with his employment duties with Perry?

84 Counsel for Mr Blake emphasised this point contending that Jones' actions needed to be looked at in the context of the following matters:

(d) Perry had not organised any activities for the drivers;

(e) There was no appropriate access to a lunch room or to luncheon facilities;

(f) The original plans for bunkering had been disrupted by the late arrival of the vessel;

(g) The incident occurred at the place where Mr Blake and Jones were required to be;

(h) Employment was the only reason for them to be at the wharf;

(i) Perry had encouraged a degree of tolerance as to activities directly outside what might be categorised as employment duties - such as the playing of football or cricket at the depot.

85 In examining the scope of Mr Jones' employment, and whether a particular activity has a sufficiently close connection with that employment, a court must look at the whole matrix of the employee's duties and not just the impugned actions of the employee.[71] Subject to a qualification I will set out in a moment, I accept that each of the matters referred to by counsel (at [84]) is relevant to consideration of the overall context of Mr Jones' employment with Perry.

86 I have already referred at [82] to the distinction between actions closely connected with the employment duties of a security guard and those which could be said to be connected to the employment tasks of the Perry drivers. Physical violence was not a natural extension of waiting for the ship; nor was it closely connected with that task or the matters referred to at [84].

87 Emphasis was placed by Mr Blake's counsel on the playing of games by employees at the depot. However, Mr Jones actions were not part of a kick to kick of the footy or backyard cricket whilst waiting for the vessel - quite the opposite. Mr Blake was injured as a result of a deliberate unlawful act on the part of Mr Jones. In any event, there was no evidence that Mr Jones (or for that matter, Mr Blake) engaged in such games - both were tanker drivers who spent little time at the depot.

88 Finally I should mention two decisions in which Courts have held that the "skylarking" activities of an employee (which resulted in injury to a fellow employee) fell within the scope of the employment of that employee.

89 In Hayward v Georges Ltd,[72] an employee, Mrs Smith, on her way to a tea room, as a prank, "thumped" a co-worker on the back who sustained injury. The blow was not struck out of spite or revenge. The jury, after being directed by McInerney AJ in accordance with the statement of principle in Deatons, (that of Williams J) found that Mrs Smith's actions occurred within the course of her employment. His Honour concluded that it was open to the jury to find that such actions were "exuberant, excessive, unauthorised" acts carried out in the performance of her employment duties and in furtherance of her employer's interests.[73] As such, Mrs Smith's actions could be regarded as being within the scope of her employment. His Honour described Mrs Smith's actions as:

enabling her the more readily to perform a function which was within the scope of her employment, i.e. going to the coffee urn to draw coffee into jugs for service to the customers. [74]

90 Contrary to the conclusion reached by McInerney AJ in Hayward, I do not believe that the actions of Mr Jones can be regarded as enabling him to more readily perform a function which was within the scope of his employment. Many of the activities described by Mr Blake's counsel at [70] may be regarded as being within the scope of employment. However, the striking of a fellow employee was, in my view, not within the purview of his employment tasks. Nor was it sufficiently closely connected with his waiting for the vessel to dock.

91 In Commonwealth of Australia v Connell,[75] the plaintiff, a naval apprentice, in company of over 20 other apprentices, was engaged in caribeening as part of his naval training. The apprentices were under the supervision of a lieutenant. When the group of apprentices reached a small bridge, in the course of skylarking the plaintiff was pushed off the bridge by a fellow apprentice. He landed on his head, suffering devastating injuries, which rendered him an incomplete quadriplegic.

92 Glass JA (with whom Samuels and Priestly JJA agreed) said as follows:

"The chain reaction of pushing grew out of the authorised performance of their service duties on the bridge and was unchecked by any order from their commanding officer until it was too late. At the highest against the defendant the jury could reasonably conclude that his failure by any word of command to control the boisterous activities of the apprentices still under military discipline impliedly authorised them to continue. At the lowest they could conclude that the conduct of the twenty apprentices in general and Dawson in particular was incidental to the performance of their service duties and/or was an improper mode of performing those duties."[76]

93 This decision, as can be seen, raises different issues to those under consideration here. The apprentices were under the control of a superior officer, who had the authority to discipline them if he wished. By analogy, if, in this instance, there had been skylarking prior to Mr Jones striking Mr Blake and a supervisor from Perry had been present and not disciplined the employees, then it could, I think, be argued that such activity was impliedly authorised. But of course that is not the sequence of events as it unfolded that afternoon at the wharf. Additionally, in Connell, the type of activity, the age and number of apprentices were all relevant factors to the conclusion that the skylarking was incidental to the performance of Mr Dawson's tasks. By contrast, at the wharf there were three mature aged men performing a mundane task.

94 For reasons I have endeavoured to set out I am not able to accept that an unlawful assault by Mr Jones on a fellow employee is so closely connected with the employment tasks of a driver awaiting the arrival of a vessel as to be regarded as within the scope of his employment

95 I am not persuaded that Perry is vicariously liable for Mr Jones' actions. In my view his actions fall on the other side of the vicarious liability line.

96 Mr Blake has not made out a case in either direct or vicarious liability against Perry and his claim must be dismissed. Subject to hearing from counsel, Perry's costs should be paid by Mr Blake in accordance with the provisions of the Act.

[1] The parties agreed that $196,000 was attributable to pain and suffering damages and $180,000 to loss of earning capacity damages.

[22] [1959] HCA 8; (1959) 101 CLR 298; see also O'Donnell v Reichard [1975] VicRp 89; (1975) VR 916, 929; Ronchi v Portland Smelter Services Ltd [2005] VSCA 83, Clark v Stingel [2007] VSCA 292.

[34] 1999 Can LII 692 (SCC); [1999] 2 SCR 534; (1999) 174 DLR [4th] 45.

[35] [2002] 1 AC 215. See also New Zealand decision of Nathan v Dollars & Sense Ltd [2008] NZSC 20; [2008] 2 NZLR 557.

[36] See Calitz, Karin, "The close connection test for vicarious liability", ( 2007) 18 Stellenbosch L Rev 451; Calitz, Karin, "Vicarious liability of employers: reconsidering the risk as the basis for liability", (2005) J S Afr L 215; Catanzariti, Joe, "Employers' vicarious liability for employee criminal activity", Law Society Journal, August 2007; Giliker, Paula, "Making the right connection: Vicarious liability and institutional responsibility", (2009) 17 Torts Law Journal; Glofcheski, Rick, "A frolic in the law of tort: Expanding the scope of employers' vicarious liability", (2004) 12 Tort L Rev 18; Lo Surdo, Anthony, "The latest word from the High Court on Vicarious Liability", Law Society Journal, September 2007; Ma, Alex Ching Kong, "Vicarious Liability and the Close Connection Test: The Past, Present and Future", (2009) 1 City U HK L Rev 177; McBride, Nick, "Vicarious Liability in England and Australia", The Cambridge Law Journal, Vol. 62, No. 2 (Jul., 2003), 255-260; McIvor, Claire, "The Use and Abuse of the Doctrine of Vicarious Liability", (2006) 35 Crim L World Rev 268; Neyers, J.W., "A Theory of Vicarious Liability", PLAINTIFF, Issue 60, December 2003; Rolph, David, "A Carton of Milk, A Bump to the Head and One Legal Headache: Vicarious Liability in the High Court of Australia", (2006) 19 Australian Journal of Labour Law; Simpson, Craig, "Handling the Violent But Bouncer", Law Society Journal, September 2007; Stevens, Robert, "Vicarious liability or vicarious action?", (2007) LQR 123; Teague, Joshua, "Vicarious liability: A comparative review of the common law after French", (2008) 16 Tort L Rev 39; Wangmann, Jane, "Liability for Institutional Child Sexual: Where does Lepore leave Australia?", [2004] Melbourne University Law Review, Volume 28; Watson, Susan & Noonan, Chris, "The widening gyre of vicarious liability", (2009) 17 Torts Law Journal.

[37] Hollis v Vabu Pty Ltd (2001) 207 CLR [21], [35]. See also Gaudron J in Lepore [127]-[131].

[40] Deatons, 378, Starks v RSM Security Pty Ltd [2004] NSWCA 351 [12]-[13].

[49] Ibid 384. Extracted by Williams J from the opinion of the Privy Council in Canadian Pacific Railway Co v Lockhart [1942] AC 591, 599..

[54] Lepore [315], see also [318].

[63] See Lloyd v Grace Smith & Co [1912] UKHL 1; [1912] AC 716; Morris v C W Martin & Sons Ltd [1966] 1 QB 716, Ffrench v Sestili [2007] 98 SASR 28.

[64] Lord Denning described this form of vicarious liability as "baffling": Morris v CW Martin & Sons Ltd [1966] 1 QB 716, 724.

Compensation Act 1985

At a glance

Court

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Before

Source

Judgment (189 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (10)