Following the Court of Appeal’s decisions on employers’ liability for assaults by employees in Weddall v Barchester Healthcare Ltd and Wallbank v Wallbank Fox Designs Ltd [24.01.12], we review the law on vicarious liability.  

Background

Prior to Lister v Hesley Hall Ltd [2001], an employer could reasonably presume that it would not be held responsible for an illegal act carried out by one of its employees. However, the appeal courts have systematically eroded an employer’s ability to distance itself from harm caused by its employees.

To go back to basics, the doctrine of vicarious liability provides that an employer, who is not personally at fault, is made legally answerable for the fault of his employee. According to Lord Miller in Lister, the critical matter is the closeness of the connection between the employee’s duties and his wrongdoings. Whether or not that activity was authorised will be immaterial to the court’s decision.

Vicarious liability is a broad church, which has been held to cover theft and accidental personal injury. As demonstrated by Lister, Maga v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] and JGE v English Province of our Lady of Charity and another [2011], sexual assaults by an employee can successfully give rise to a claim. Bullying and harassment are also potential sources of litigation. There may even be occasions when a non-employer will be deemed to be vicariously liable, taking account of issues of control.

Whilst each case will turn on its own facts, the court will look at the nature of the risk created, whether that risk is inherent to the business, and who should take responsibility for it. The violence of an outcome does not prevent an employer being responsible, if the activities of the individual at the time were part of the role he was employed to carry out.

Recent claims

In both Weddall and Wallbank, the employees in question had been convicted of criminal offences following the assaults:

  • Mr Weddall was a care home manager who was attacked by an employee, Mr Marsh. He had called Mr Marsh at home to ask him to come into work to cover for another employee. Mr Marsh had refused and then called back to resign. Mr Marsh (who accepted he had been drinking) took exception to Mr Weddall’s manner, went to the care home, and, seeing him sitting in the front garden of the care home, assaulted him. At first instance, His Honour Judge Moloney, in finding for the Defendant, described his activities as “the spontaneous criminal act of a drunken man who was off duty”.
  • Mr Wallbank (a company director) was speaking to a junior employee, Mr Brown, when Mr Brown threw him some 12 feet onto a table, fracturing his vertebra. The work involved coating frames with powder, which were then fed into an oven. It was necessary to maintain a steady flow of frames into the oven to avoid wasting fuel. Mr Brown was not an exemplary employee but he had no history of violence. So, when Mr Wallbank reminded Mr Brown of the need to keep the oven busy and made it clear that he was going to help him, there was no indication that Mr Brown would react in this way. At first instance, His Honour Judge Elly found in favour of Mr Wallbank.

Court of Appeal

Both cases involved a senior worker being injured by a junior one. However, the Court of Appeal followed the decision of Lord Carloway in the Scottish Court of Session in Wilson v Exel UK Ltd [2010], who rejected the idea that liability would depend on whether “the assailant were further up the hierarchical tree”. Lord Justice Pill concluded that violence was just as likely to give rise to vicarious liability if “a senior employee drives home an instruction with a blow” as “when a junior employee reacts to a lawful instruction with force”.

For the Court of Appeal it was pivotal that, in Weddall, Mr Marsh was off duty at the time of the assault. There was simply insufficient connection between what the employee was required to do and the unlawful violence which ensued. The employer could not be held liable. The workplace was simply the venue for the assault and the request to work by Mr Weddall simply “the pretext for an act of violence”.

The position in Wallbank was more nuanced. Pill LJ considered that a reaction to instructions, albeit irrational, would form part of employment and that “the tort flowed directly from the fact that Mr Brown was given instructions by a fellow (but superior) employee in the course of Mr Brown’s employment”. Previous case law showed the need to take a broad view of the nature of employment. This did not mean that any irrational reaction to instruction would fall within the doctrine. However, in this case it was not just or fair to deprive the employee of a remedy.

Comment

For employers and their insurers these decisions are a mixed blessing. The impact of any inherent workplace friction and subsequent violence is yet another factor to be weighed up when considered whether a claim should be settled or fought. In addition, the courts’ obvious reluctance to draw up a definitive test of “in the course of employment” continues to make life difficult for the decision-makers. However, some comfort can be drawn from the fact that the Claimant only succeeded in one of these claims, and it is clearly not open season for claimants to recover against an employer when assaulted by a fellow employee.