The case study: The Shalimar
An employee (a chef) has assaulted a colleague (a waiter) during the course of service at an insured restaurant in Staffordshire. The waiter has been stabbed and is seeking damages for personal injury and other losses from the employer. The insured is understandably aggrieved at the prospect of being found liable for the criminal actions of the chef, but what are the likely issues to be considered by the Court and what findings might be reached on whether vicarious liability will attach?
The legal background
Employers pay people to do specific jobs to certain standards. Employees are invested in, trained, given support and assistance, mentoring, feedback, specialist tools and equipment and a management structure within which their work can be supervised and controlled. Despite all that people will, through their own inadvertence, carelessness or neglect still get things wrong, sometimes with catastrophic consequences.
There could be little doubt in many circumstances that the employee was seeking to further the employer’s endeavour at the time of his or her negligent act. Through the use of tangible judicial reasoning the courts have traditionally concluded that the risk of the harm caused by the negligent employee wrongly carrying out what he or she was being paid to do should transfer to the business in whose interests they were acting; the employer stood to profit from the employee doing the job well, and should be expected to bear the risk of the loss or damage (to a third party) if the employee did the job badly.
Some basic principles are applied in fixing the employer with liability in that scenario:
You commit the tort
You authorise the tort
You are potentially liable for any damage sustained.
The reasoning is succinct and there is a direct connection between what the employer has contrived and authorised as a working practice, and the unintended consequence of an intentional act (when the employee is too heavy handed with his pick axe, or absent mindedly leaves the gantry trap door ajar after using it). The employer’s CONTROL over what was done has also been a key feature of determining whether the act was one “in the course of employment”.
But what of the scenario facing the owner and insurer of the Shalimar?
“The Chef just lost it, he went off his rocker with the waiter for having dropped the two main courses that were already late going out, shouting and swearing even more than usual and then he just grabbed the kitchen knife…” Mr K Porter, witness for the claimant.
The court may well be facing a case where the injuries were genuinely catastrophic and life changing with untold consequences for the injured party and their families. On a very human and social level there is a significant desire to draw some connection between the extent of those injuries and the available resource that the employers’ liability insurance policy will perhaps provide. That is despite a discrete route to (more modest) compensation through the Criminal Injuries Compensation Authority for the innocent victims of violent crime.
The courts have succumbed to that irresistible pressure to find liability in a number of these special cases where, on any lay person’s interpretation, what the employee was being paid to do has been abandoned in preference of some violent criminal act.
The 2001 House of Lords authority of Lister v Hesley Hall Limited was a very difficult case. It involved the sexual abuse of resident pupils in the care of a school boarding-house warden and their claims for substantial compensation for the physical and long-term mental trauma they suffered long into adulthood as a result. The HoL felt that the traditional test for the liability of the employer, “an authorised act done in an unauthorised way”, was inadequate for the subtlety and complexity of the circumstances it was being asked to consider.
A broader and more malleable test was therefore introduced raising the question of whether the tort was, “so closely connected with his employment that it would be fair and just” to make a finding of vicarious liability. On the specific facts the court concluded that the abuse was so inextricably woven into the carrying out of the duties of warden that vicarious liability should attach. Notably if the abuse had been at the hands of a grounds-person or say a caretaker then liability would not have attached and some distinction was retained for those cases where the employment merely afforded the opportunity in space and time, without the “close connection” to the work/role in hand.
A string of more recent cases have applied and qualified the “close connection” test emphasising how incredibly fact sensitive these cases are and the huge importance of undertaking a detailed and wide-ranging investigation of any claim that, on its initial reporting, has the hallmarks of a “workplace crime”. The underlying principle is increasingly one of whether, in a broad sense, the employer has materially increased the risk of something that may have been a possibility in the first place becoming a reality.
Throwing a punch at the end of a rugby match has therefore been an assault for which the club were liable, even despite a contractual clause specifically prohibiting the player from exhibiting that sort of behaviour in the course of a match (Gravill v Carroll (2008)). It was the sort of risk the club had anticipated (and even contracted against).
Two cases of assault between colleagues were heard together by the Court of Appeal in 2012 but reached opposite conclusions.I In one (Weddall v Barchester Healthcare), the colleague who responded angrily to a request to work an additional shift was held NOT to have fixed the employer with liability when he then cycled to work to attack his team leader/manager. In the other (Wallbank v Wallbank Fox Designs), the factory operative who threw his manager twelve feet across the floor having been unappreciative of the way in which he had been asked to help with a task, was acting in the course of his employment because the “risk of friction” was inherent, especially in a factory where instant instructions and quick reactions were required.
A group of recent cases in Scotland suggests that where the work does not involve some inherent force or potential “friction” between employees, vicarious liability will not usually arise. In Wilson v Exel UK Ltd (2010) a health and safety supervisor pulled the claimant’s ponytail. In performing a “prank” the supervisor was held to not have been doing anything in relation to his health and safety duties and the employer was not liable for that frolic. In much more serious circumstances (Vaickuviene v J Sainsbury plc (2013)), no liability was found for a racially motivated murder in the workplace at the end of days of harassment and angry exchanges between the two men. The employment had merely provided the perpetrator with “the opportunity to carry out his own personal campaign”.
And so, when the Court of Appeal came to consider the matter of Graham v Commercial Bodyworks Limited (2015) there may have been more confidence on the part of the insurer that no liability would arise. The claimant’s overalls had routinely been sprinkled with highly flammable thinners in the course of undertaking vehicle body repair work, causing a significant conflagration when a friend and co-employee intentionally used a cigarette lighter in his vicinity. Smoking was not permitted, no similar incident had ever occurred and there were robust procedures in place for the use and handling of the thinning agent and rags and overalls. The reckless but “frolicsome” conduct could not be said to have occurred in the course of employment.
It is telling that in this final case, and in those of Wilson and Vaickuviene there was no position of particular authority on the part of the perpetrator relative to the “victim”. That relative position of power or authority along with a number of other factors have been summarised in the court of Appeal case of Mohamud v William Morrison plc (2014) as an indicator of the sorts of wide-ranging issues that a court will need to determine to assess the question as follows:
- The opportunity that the enterprise afforded the employee to abuse his or her power
- The extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee in the first place)
- The extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise
- The extent of any power conferred on the employee in relation to the victim
- The vulnerability of potential victims to wrongful exercise of the employee’s power
Each case very much turns on its own facts but, returning to the case study of The Shalimar, it was no surprise that an audience at the Manchester Liability Society underwent a wholehearted sea-change in their assessment of liability. Initially 98 per cent of the audience had concluded that NO vicarious liability would attach but at the conclusion of the discussion and with regard for the relative level of authority assumed by the chef in many kitchens, the inherent tensions that can regularly arise even with front of house staff, and the overall vulnerability of a “mere waiter” it was comprehensively accepted that the employer and insurer faced a genuine liability for the criminal actions of the employee.
Careful and well thought out investigations dealing with workplace culture and the tone and substance of previous interactions will be essential for making early well informed decisions regarding liability in this fluid and dynamic area of common law. Attention should also be paid to the way the Supreme Court ultimately deals with the Appeal in the Mohamud case that is due for hearing in the coming months.