Vicarious liability following intentional act of co-employee
The claimant was injured when his friend and co-employee used a cigarette lighter after having sprinkled the claimant’s overalls with a highly inflammable thinning agent when they were both at work at a bodywork repair shop. There was no evidence that the friend had intended to cause any serious harm to the claimant but at trial his actions were described as “clearly reckless”. The judge held that the claimant’s employer was not vicariously liable and the claimant appealed.
The Court of Appeal has now dismissed that appeal. It noted that in most cases, the focus is on whether an employee’s conduct “was so closely connected with acts which the defendants authorised that they may rightly be regarded as modes – though improper modes – of doing them”. There was also reference to Canadian caselaw and an inquiry into whether there is a close connection between the creation or enhancement of a risk and the wrong. Here, the defendant employers did create a risk by requiring their employees to work with thinning agents but it was difficult to say that the creation of that risk was sufficiently closely connected with the wrongdoer’s highly reckless acts. The wrongful acts did not further the employer’s aims, there was no confrontation inherent in the employer’s enterprise and the wrongdoer did not have any power in relation to the claimant.
It concluded that the UK authorities “tend to resolve themselves into two groups”. On the one hand, there are cases where the use of reasonable force or the existence of friction is inherent in the nature of the employment (eg a bouncer at a nightclub). On the other hand, there are cases (into which category this case fell) where such force or friction is not inherent in the employment relationship. In such cases, intentional acts (whether horseplay or rather more serious conduct) do not usually give rise to vicarious liability.