Although absence of evidence in disease claims always has an adverse effect for employers, it can sometimes have positive benefits in other types of claim, as a recent Court of Appeal decision shows.

On 20 October 2016 the Court of Appeal overturned the decision of a County Court Judge who had decided that a pedestrian’s employer was vicariously liable for an accident caused when the employee walked in front of a policeman cyclist in a cycle lane on a public road.

The County Court judge had decided that the employer was vicariously liable for the accident because its employee, T, had been acting in the course of his employment when he crossed the road. The judge’s reasoning was that T had been heading for his employer’s shop, was wearing his work clothes including a logo shirt, and had given the shop’s address as his address. The judge said he did not know why T had left the shop in the first place but it did not matter as he was going back there in the course of his employment. The employer appealed.

The Court of Appeal noted the evidence was that T was a shop assistant who had been due to finish work at mid-day, and that the accident happened at 12:45pm. Even if T had been at work at that time, it was impossible to know if crossing the road at 12.45pm was sufficiently connected to T’s work to make it reasonable to hold his employer to account because neither T nor his employer had given any evidence explaining why he was crossing the road. The Court of Appeal said the test of connection was to first consider the functions entrusted to the employee and then to decide whether there was sufficient connection between his wrongful conduct and the position in which he was employed. Because the trial judge did not know why T was crossing the road, he had no option but to decide that there was no sufficient connection to make the employer vicariously liable.

Case: Fletcher v Chancery Lane Supplies Ltd (2016) Court of Appeal 20/10/2016