Howard v Queensland  2 Qd R 154.
(Court of Appeal)
Judges: McMurdo P, Thomas JA and Ambrose J.
Facts: The appellant is the plaintiff in this action against the respondent, claiming for damages for psychiatric injury. Under the Whistleblowers Protection Act, the appellant can be classified as a whistleblower; and the allegations made by the appellant are that the actions made against him by two of his fellow employees constituted reprisal under s41 of the Act, and that the defendant is vicariously liable for their actions. Mr. Howard is appealing from a decision trialed by a court.
1. Should the demurrer be upheld on the ground that 'on the proper construction of the Act vicarious liability is excluded'?
2. 'Assuming that the act leaves vicarious liability open', does the affidavit allege 'facts capable of establishing such liability against the defendant'? [Paragraph 10]
1. The application of the normal rules of vicarious liability regarding intentional torts, as in this case, is not necessarily valid. The two tests arising from Deatons Pty Ltd v Flew (1949) 79 CLR 370, being, whether the wrongful act was one "to which the ostensible performance of his master's work gives occasion", and whether it was "committed under cover of the authority in which he is placed as a representative of his maser". In this case, these tests are not satisfied, as the illegal acts committed by employees fall outside their scope of employment, and the employer did not authorize those acts.
2. The affidavit does not allege facts capable of establishing vicarious liability. No allegations concerning the system of handling employee complaints; and that the act of making a complaint were in the scope of an employee, were made. It should be noted that the unlawful complaints...