Personal injury lawBy Simon Allen, Russell Jones & Walker, SheffieldVicarious liability for the acts of an employee Fennelly v Connex South Eastern, Court of Appeal Buxton Schiemann LJJ, 11 December 2000 Does an assault...Vicarious liability for the acts of an employee Fennelly v Connex South Eastern, Court of Appeal Buxton Schiemann LJJ, 11 December 2000 Does an assault by an employee ever fall within the scope of his employment? The Court of Appeal reviewed the case law in relation to what can be classed as an authorised act by an employer looking at the rather bizarre circumstances of a ticket inspectors assault on the claimant at Bromley South Railway Station.The ticket inspector asked the claimant for his ticket.

He carried on walking.

The inspector barged past him requiring him to stop by standing in front of him and demanding his ticket.

This was produced and snatched off him.

It was given back and the claimant walked away.

The inspector then headlocked the claimant, dragging him a few steps and stating I have had enough of this.

It was accepted by both parties that an assault had occurred and the Court of Appeal had to decide whether:l It was a wrongful act authorised by the employer, or; l It was a wrongful and unauthorised mode of doing some act authorised by the employer.

An example of an act outside the course of ones employment was cited from Century Insurance Company Limited v Northern Ireland and Transport Board, 1942 of a petrol tanker driver, who went to fill his tanker at a garage and while doing so took it upon himself to light a cigarette and throw the match to the ground.

The consequences were predictable.

This was clearly an unauthorised act and was to quote Comyn J in Harrison v Michelin Tyre Company in 1985 1 AER 918, so divergent from the employment as to be plainly alien to and wholly distinguishable from the employment.

Other cases were cited, but Buxton LJ took the view that in answering the question as to whether an act fell within the course of employment, one should look at the job being done in general terms by the employee and not narrowly by dividing each step and task that the employee performs and then asking whether each separate step is authorised.

In the circumstances, the inspector was performing part of his employment.

He was authorised to check tickets.

It is difficult to divide the incident and conclude that his performance of duty had ended at some stage in the course of his meeting with the claimant.

On common sense grounds, their Lordships said that it was all part of the same incident and found that the employer was responsible.

As an aside, counsel for the defendant argued that if the tort gave rise to a crime then as the claimant would have a remedy through the Criminal Injuries Compensation Scheme, no responsibility should attach to the employer.

Lord Justice Schiemann rejected this argument out of hand.

An employer will therefore be responsible unless he can dissect the employees action quite cleanly from the performance of his duties and show the action is plainly alien to those duties.