In recent times a disproportionate number of cases concerning vicarious liability have reached the higher courts. Sadly, a number of these have involved abuse of children by members of the clergy. Violence is a common feature, though financial wrongdoing was the offence in Dubai Aluminium Company Ltd v Salaam [2003] AC366.

The House of Lords’ decision in Lister v Hesley Hall Ltd [2002] 1AC 215 is the leading authority and, specifically, the judgment of Lord Steyn. In considering whether the employers of a warden at a school boarding house were liable for his sexual abuse of boys in his care, his lordship, supported by lords Hobhouse and Hutton, stated: ‘The question is whether the warden’s torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable.’

This test was further refined by Lord Clyde who found that: ‘The sufficiency of the connection may be gauged by asking whether the wrongful actings can be seen as ways of carrying out the work which the employer has authorised.’ Lord Millett added that an employer will be liable ‘only if the risk is one which experience shows is inherent in the nature of the business’.

The ‘closeness of the connection’ between the act of the employee and the duties he performs in his employment is considered in the context of the circumstances of each case and a ‘value judgement’ (Lord Nicholls in Lister) is then given by the court.

In recent years there have been some bizarre cases; alas, all with grave consequences. These include an off-duty police officer in Jamaica (Bernard v Attorney General of Jamaica [2004] UKPC 47) who used his police revolver to shoot a member of the public through the head who, when asked, would not hand over a public telephone; to a bouncer (Mattis v Pollock [2003] 1WLR 2158) who, having had an altercation with a customer within the nightclub in which he worked, left the club, went home, collected a knife and then returned to the club, followed the victim and then stabbed him outside the confines of the club. In both instances the employer was held responsible for the actions of the employee. In the latter case, the stabbing was held to be ‘an unfortunate and virtual culmination’ of the earlier disagreement.

What has emerged is a series of observations akin to ‘soundbites’ to help define the ‘close connection’ test, perhaps best exemplified by Lord Justice Rix in Viasystems (Tyneside) Ltd v Thermal Transfer Ltd & Others [2005] EWCA Civ 1151, who said that ‘it ­doesn’t depend on the employer’s fault, but on his role’. In the two following cases, the Appeal Court looked at two assaults by employees on other members of staff, but in different circumstances.

Weddall v Barchester Healthcare Ltd

In Weddall, the claimant was the deputy manager of a care home who was assaulted by Mr Marsh, a senior health assistant. On a night shift a number of employees had called in sick and Mr Weddall, attempting to secure a replacement, telephoned Marsh at his home. No pressure was put on him to attend at work but, apparently, Marsh had had a bad day because of a row at home and by 6pm was already very drunk. He didn’t react well to the call, got on his bicycle, cycled to the care home and then attacked Weddall, knocking him to the ground and kicking him. The judge at first instance described his act as ‘a spontaneous criminal act of a drunken man who was off duty’. The Court of Appeal agreed. The assault was ‘separate and distinct’ from his employment. The request to attend at work was held to be no more than a pretext for an act of violence unconnected with his work as a health assistant. The assault, rather like Mattis, took place some time after the telephone call.

Wallbank v Wallbank Fox Designs Ltd

In Wallbank, the court found for the employee. Mr Wallbank was the managing director of a company employing Mr Brown, who was a powder coater and sprayed metal bed frames. Brown was ‘not a wholly satisfactory employee’ and had been spoken to on a number of occasions. On the occasion of the assault, Wallbank asked Brown to load up more bed frames and, indeed, indicated that he would assist him with doing so. Brown placed his hands on Wallbank’s face and threw him onto a table about 12 feet away. Like Marsh, he too was convicted at the Crown court of a criminal assault.

In finding for the claimant, the Court of Appeal held that the violence was not only very closely related to the employment in both time and space, but was ‘a spontaneous and almost instantaneous, if irrational, response to an instruction’.

While the many judgments that have been given in these cases over recent years have rarely assisted in further clarifying the judgment in Lister, the conclusions that one can properly draw are as follows:

  • vicarious liability is perceived as a principle of strict liability;
  • the ‘close connection’ test is the starting point in assessing the applicability of the concept;
  • the facts of an individual case are critical; and
  • ultimately, it has to be ‘fair’ to attach responsibility to the employer, but a combination of proximity in time and place, and creation of enhancement of the risk of injury through employment, assist a claimant in succeeding against his employer.

Simon Allen, Russell Jones & Walker