From: Neil Foster <neil.foster@newcastle.edu.au>
To: Phillip Morgan <phillip.morgan@york.ac.uk>
CC: obligations@uwo.ca
Date: 06/02/2015 00:56:37 UTC
Subject: Re: Vicarious Liability for Workplace "Horseplay"
Thanks Phillip, a good illustration of general principles. A more recent Australian decision on VL for “horseplay” was Blake v J Perry Nominees Pty Ltd [2012] VSCA 122 http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2012/122.html  where one worker kicked another in the back of the leg while they were standing around bored waiting for a ship to arrive. The majority found against vicarious liability but there is an interesting dissent by Neave JA which I think shows that sometimes a case can be made for certain types of behaviour of this sort to be so foreseeable that it ought to be regarded as in the “scope” of employment. Perhaps the difference lies partly in the extent of the stupidity, which seems to have been at the very high end here in Graham!
Those interested in vicarious liability might also be interested to note the decision handed down by a single judge in South Australia on child sexual abuse by a boarding house parent in A, DC v PRINCE ALFRED COLLEGE INCORPORATED [2015] SASC 12 (4 Feb 2015) http://www.courts.sa.gov.au/Judgments/Lists/Judgments/Attachments/1804/2015%20SASC%2012.pdf . While the claim fails due to Limitations reasons anyway, I have to say I found the judge’s discussion of VL (she says it was not applicable) very unsatisfactory- a boarding house context is precisely the sort of place, as demonstrated of course in Lister itself, where the “close connection” probably exists, whatever the “formal” description of the master’s duties. I also would like to have seen some more serious discussion of the non-delegable duty argument, which as colleagues who went to Obligations VII may recall I think should provide an alternative avenue to recovery in school (and many clergy) cases. But I accept that while the High Court decision in Lepore stands an NDD claim for sexual assault won’t succeed in Australia.
Regards
Neil



neil foster 
Associate Professor
Newcastle Law School
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From: Phillip Morgan <phillip.morgan@york.ac.uk>
Date: Friday, 6 February 2015 11:10 am
To: "obligations@uwo.ca" <obligations@uwo.ca>
Subject: Vicarious Liability for Workplace "Horseplay"

Dear All,


Today the Court of Appeal have handed down judgment in Graham v Commercial Bodyworks, http://www.bailii.org/ew/cases/EWCA/Civ/2015/47.html, another vicarious liability case in which the close connection test was examined, yet again, by an appellate court.


It is an entirely sensible decision in which the Court of Appeal upheld the judge at first instance to declare that there was no vicarious liability where an employee, for fun, applies thinner (a flammable fluid utilised as part of his job) to his friend and colleague’s overalls, and then sets him alight with a cigarette lighter.  That said, oddly the recent Supreme Court case of CCWS did not get a mention, particularly given that it deals with the second limb of vicarious liability and risk creation.


Kind regards,



Phillip Morgan



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_______________________

 
 
Phillip Morgan,
 
Lecturer in Law,
 
York Law School,
The University of York,
Freboys Lane,
York,
YO10 5GD,
United  Kingdom,