Dear List Members,
The English Court of Appeal has handed down judgment in Weddall v
Barchester, and Wallbank v Wallbank Designs [2012] EWCA Civ 25
Appeal decision on vicarious liability and the close connection test. That
such questions are still regularly troubling the appellate courts indicates
the increasing mess of the case law. Both concern criminal assaults. The
decision in Wallbank is unusual, controversial, and stretching of
authority.
In the first case (Weddall) the Deputy Manager of a care home was assaulted
by a Senior Health Assistant at the home, (a junior employee). The Deputy
Manager called the then off duty SHA to see if he would fill an empty
shift. The SHA was free to accept or refuse. The SHA was drunk, and did not
react well to the call. He telephoned the Deputy Manager back to say that
he resigned, and he then cycled to the care home where he proceeded to
assault the Deputy Manager. The judge at first instance held that there was
no vicarious liability, the Court of Appeal agreed. This is a
straightforward case and it is unclear how the case met the threshold for
permission to appeal to be granted.
In the second case (Wallbank), the Managing Director (also the sole
shareholder) of a manufacturing company was assaulted by a junior employee.
The junior employee made an error in operating the oven, and the MD asked
him why he had made the error. The MD then walked to the other end of the
oven and indicated to the employee that he should assist him. The employee
joined him, and then assaulted the MD. The MD sued his own company alleging
that it was vicariously liable for the junior employee. The judge at first
instance held that whilst the MD was acting within the course of his
employment the junior employee was not and there was no vicarious
liability. The Court of Appeal disagreed, and found that vicarious
liability was present. In doing so they have stretched the authorities
somewhat, and have narrowed the divide between mere opportunity and close
connection.
The key sections of the judgments are as follows:
Pill LJ
"52. However, as Lord Millett recognised in Lister, the circumstances in
which an employer may be vicariously liable for his employee's intentional
misconduct are not closed. Not only was the violence closely related to the
employment in both time and space, it was a spontaneous and almost
instantaneous, if irrational, response to an instruction. Undoubtedly,
reaction to instructions, normally by way of carrying them out, is a part
of an employment, whether as a powder coater or in any other capacity.
Recent authorities (Fennelly and, since Lister, Mattis, Brown and Gravil)
have demonstrated the need to take a broad view of the nature of an
employment and what is reasonably incidental to the employee's duties under
it.
53. Mr Cleeve puts it broadly: an employee who reacts to an instruction
with violence towards the instructing employee is inevitably acting in the
course of his employment. To accept that broad proposition would, in my
judgment, be to go too far. The policy reasons for limiting the operation
of the principle of vicarious liability are sound.
54. On the other hand, as a matter of loss distribution (Lord Millett in
Lister), it may not be fair and just (Lord Steyn in Lister, Judge LJ in
Mattis, Sir Anthony Clarke MR in Gravil) to deprive of a remedy (except
against the fellow employee), an employee who is assaulted by way of
reaction to an instruction he has given. The possibility of friction is
inherent in any employment relationship, but particularly one in a factory,
even a small factory, where instant instructions and quick reactions are
required. Frustrations which lead to a reaction involving some violence are
predictable. The risk of an over-robust reaction to an instruction is a
risk created by the employment. It may be reasonably incidental to the
employment rather than unrelated to or independent of it.
55. I am far from saying that every act of violence by a junior to a more
senior employee, in response to an instruction at the workplace, would be
an act for which the employer is vicariously liable. In the case of
Wallbank, however, I am persuaded, not without hesitation, that the
employer should bear vicarious liability for the spontaneous force by which
the employee reacted to the instruction given to him. On the facts, this
may be a step beyond what emerges from the facts of the cases cited but,
applying the principles established in those cases, it is in my view a step
that should be taken on the facts of this case.
56. A broad view must be taken of the nature of the employment when
considering violence used by an employee (Fennelly, Mattis and Brown) and I
have concluded that the doctrine of vicarious liability does provide
Wallbank with a right of action against his employer. It is, of course,
ironic that Mr Wallbank himself is in effect the employer but that is not
suggested on either side to be relevant to the outcome."
Aikens LJ
"67. Like Pill LJ, I have found the Wallbank appeal more difficult.
However, I think a close analysis of the facts leads inevitably to the
conclusion that the tort committed by Mr Brown on Mr Wallbank was done in
the course of Mr Brown's employment. It is clear on the facts that Mr Brown
attacked Mr Wallbank as a result of the instructions given by Mr Wallbank
to Mr Brown. Those instructions were lawfully given by Mr Wallbank, as the
superior employee. Mr Brown reacted to them almost immediately. To my mind
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.
The tort was so closely connected with what was expected of Mr Brown, which
was to carry out lawfully given instructions, that it would be fair and
just to hold his employer, Wallbank Fox Designs Limited, vicariously liable
for his tortious attack on Mr Wallbank."
Kind regards,
_______________________
Phillip Morgan,
Lecturer in Law,
York Law School ,
The University of York,
Freboys Lane,
York,
YO10 5GD,
United Kingdom,