Employee violence and vicarious liability - are we any further forward?
Debbie Grennan, Guildhall Chambers
Since 2001, there has been a wealth of case-law on the question of when an employer should be held vicariously liable for acts of violence committed by its employees. Debbie Grennan considers the application of the key principles and in particular, the impact of the recent Court of Appeal judgment in the conjoined appeals of Weddell v Barchester Healthcare Ltd; Wallbank v Wallbank Fox Designs Ltd  EWCA Civ 25,  IRLR 307 which she contends raises as many questions as it answers and leaves the way clear for further appellate intervention.
Prior to 2001, an employer could be relatively confident of avoiding tortious liability for the illegal acts, including violent acts, of its employees. Where an employee was engaged in a ‘frolic of his own' the employer was simply not liable. The seminal judgment of the House of Lords in Lister and others v Hesley Hall Ltd  IRLR 472, a case concerning the torts of a warden who had sexually abused boys in his care, brought an important change of approach.
The House of Lords developed a new test, focusing on the closeness of the connection between the act and the employment, Lord Steyn noting that ‘the question is whether the torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable.' Lord Millett stated that vicarious liability could best be understood as a ‘loss-distribution device' noting that ‘if the employer`s objectives cannot be achieved without a serious risk of the employee committing the kind of wrong which he in fact committed, the employer ought to be liable ... he is only liable if the risk is one which experience has shown is inherent in the business ... attention must be concentrated on the closeness of the connection between the act of the employee and the duties he is engaged to perform broadly defined.'
In Dubai Aluminium v Salaam  IRLR 608 HL, Lord Nicholls confirmed that the application of this test required ‘a value judgment by the court.' Sir Anthony Clarke MR noted that ‘the court must take account of all the circumstances of the case ... looking at the matter in the round.'
Application of the Lister test
The test has been applied widely in subsequent years, sometimes with arguably surprising results. For example:
- Mattis v Pollock  EWCA Civ 887,  IRLR 603: the employer was held vicariously liable for the violent conduct of a doorman. Following an altercation at the door of the club involving friends of Mr Mattis, the doorman left the club, walked to his home, collected a knife, found Mr Mattis in the street and stabbed him. At first instance, the judge held that the lapse of time and intervening events were such that this could not be treated as one incident commencing at the club and that there was not a sufficiently close connection between the employment and the assault for it to be fair and just for the employer to be liable. The Court of Appeal overturned this finding, noting that where an employee is expected to use violence in the course of carrying out his duties, the likelihood of establishing that the violence fell within the scope of his employment is higher. In circumstances where the employee was encouraged to act in an aggressive and intimidatory manner which including physically manhandling customers, the stabbing should properly be regarded as the culmination of an entire incident and not as a separate incident.
- Bernard v Attorney General of Jamaica  UKPC 47,  IRLR 398: a police officer required Mr Bernard to hand over the public phone he was using. Mr Bernard refused, whereupon an altercation developed. The officer pulled out his gun and shot Mr Bernard in the head. When Mr Bernard regained consciousness at the hospital, the officer arrested and handcuffed him. The trial judge held that although there was no evidence that the officer was on duty at the time of the incident, it could reasonably be inferred that his demand to use the phone was somehow connected with his duties as a police officer and that the shooting was in furtherance of this demand. On this basis, vicarious liability was established. The Jamaican Court of Appeal disagreed. On appeal, the Privy Council held that the officer had purported to be acting in the course of his duties when he made the request, that his subsequent actions at the hospital were consistent with this and that the sufficiently close connection was established.
- Brown v David Robinson Sentry Service Co Ltd  UKPC 65: an employee of a security company who was supervising entry to a football ground pursued, shot and killed a man who had pushed him while seeking to gain entry to the stadium. At the time of the shooting, the man was stationary with his hands in the air. The Privy Council held that there was a sufficiently close connection with his employment for vicarious liability to be established and that it could not be said that this was a pure act of revenge or ‘private retaliation.'
In many of these cases, the employees worked in roles where physical contact, even violence, may reasonably be anticipated. This was regarded as an important feature in fixing employers with vicarious liability.
In addition, there has been a recognition by the courts of the tension between the rights of the victim to have an effective remedy and the fact that vicarious liability of employers is strict (in the sense that once it can be shown that the wrongdoing employee would be liable, there is no defence available to the employer provided the conditions for vicarious liability are shown) and that this principle should not therefore be without proper limits.
In the two conjoined appeals of Weddell v Barchester Healthcare Ltd; Wallbank v Wallbank Fox Designs Ltd  EWCA Civ 25,  IRLR 307, the Court of Appeal revisited the question of vicarious liability in the context of violence against other employees rather than third parties and where the use of a degree of force was not inherent in the nature of the wrongdoer`s employment.
Facts and first instance findings
In Weddell, the claimant was the deputy manager of a care home. The tortfeasor, Mr Marsh, was a senior healthcare assistant and in a junior position to the Claimant. They did not get on well but there was no suggestion of any prior violence or threats. On the evening in question, an employee had called in sick. The claimant followed the usual practice of ringing round to try to find cover for the shift. He telephoned Mr Marsh, who by his own admission, had had a bad day because of a row at home and was very drunk. He reacted badly to the call, forming the impression that the claimant was mocking him. He refused to cover the shift and shortly afterwards, rang the home, saying that he intended to resign. He then went to the home, saw Mr Weddell in the garden and, without any conversation of significance, attacked him. At first instance, the judge held that the assault was ‘the spontaneous criminal act of a drunken man who was off duty; he was in no sense acting ... in the course of employment or the opportunities given by his employment' and that it would not be fair or just to hold his employer vicariously liable for those acts.
In Wallbank, the claimant, managing director and sole shareholder of a small manufacturing company, was attacked by Mr Brown. Mr Brown was regarded as a ‘not wholly satisfactory employee' but there was nothing to suggest he was likely to become violent. The claimant took Mr Brown to task over work performance and asked him to assist with a work task. Mr Brown immediately approached the claimant, placed a hand on his face and threw him onto a table, causing an injury to his back. At first instance, the judge held that ‘I have come to the conclusion that, in assaulting his employer, Mr Brown was not acting in the course of his employment ... his actions fell outside that close connection which is required between the tort which he committed (assault) and the work that he was employed to do ... '
The arguments and findings on appeal
A distinguishing factor in these appeals was the existence of a violent and unprovoked response to a lawful work instruction. The appellants contended that the receipt of and response to instructions were part and parcel of employment and that the employer should be vicariously liable for such responses, even where they were wholly unpredictable and excessive, as they were nevertheless acts done in the course of employment.
The Court of Appeal rejected the broad contention that a response to a lawful instruction would of necessity be an act done in the course of employment. In the case of Weddall, it upheld the finding below that ‘the employee was acting personally for his own reasons,' Pill LJ noting that ‘the instruction or request ... was no more than a pretext for an act of violence unconnected with work.'
However, in the case of Wallbank, there was a sufficiently close connection. According Pill LJ, the circumstances in which vicariously liability might be established are not closed and a broad view must be taken. Further, as a matter of loss distribution, the possibility of employment friction is heightened in a factory environment, where instant instructions and quick reactions are required and frustration and violence are more predictable. The risk of an over-robust reaction to a work instruction might therefore be regarded as a risk created by the employment, rather than independent of and unrelated to it. Thus, vicarious liability was established.
Where does this judgment take us?
At first blush, the Court of Appeal`s approach might appear to take a more limited approach to that seen in earlier cases since Lister. There was a tacit recognition that the law was in danger of developing too far, thus making employers liable for almost any tort where there was some sort of connection with the employment. The Court of Appeal has stepped back from such a position and has made it clear that an act of violence which is linked to employment merely because the employment provides the opportunity to commit that tort will probably not, of itself, be sufficient. As noted by Pill LJ ‘the doctrine of vicarious liability, which is policy based, must be kept within limits.'
On the other hand, an unexpected and irrational act of violence committed promptly in response to lawful instructions is likely to found liability. It is therefore arguable that the current approach expands the circumstances in which vicarious liability might be established. What is clear is that the law continues to develop apace. However, the approach taken in the conjoined appeals does cause difficulty, due to the emphasis on the highly fact-specific test. While the conclusion in Weddell in particular is difficult to criticise on its facts, what is the position in cases which are closer to the borderline? As noted by Aikens LJ in his concurring judgment, the court is required to make a value judgment and that value judgment is not a finding of fact but is a conclusion of law, based on the primary facts. Wallbank was regarded as being a somewhat borderline case, with Pill LJ noting that his conclusions had been reached ‘not without hesitation.' Nonetheless, the Court of Appeal was prepared to overturn the judge at first instance on the basis that their value judgment on the facts was different to his. There can be little doubt that there will be many more borderline cases in which a value judgment has to be reached and which is likely to be susceptible to appeals.
Taking the facts of the two appeals as examples, had Mr Marsh agreed to come into work to cover the shift and then attacked Mr Weddell upon arrival, would this have been sufficient to have a sufficiently close connection with his employment? If Mr Brown had waited before attacking Mr Wallback, attacking him as he left work at the end of the shift, might there have been a different outcome?
The Court of Appeal has declined to provide any clear guidance, instead reiterating the general ‘close connection' test and stressing the importance of the particulars facts of each case. The tension still exists between providing an effective remedy for the innocent victim of the wrongdoing and not exposing employers to vicarious liability too readily. Workplace stress and tension between individuals, whether managers, colleagues, subordinates or third parties is not an uncommon situation, particularly in the current economic climate. It is clear that this is not the last we will hear of this thorny issue. The appeal courts are likely to find it necessary to continue to explore the boundaries of these principles for some time to come.
An abridged version of this article was first published in ELA Briefing (Vol 19, No 6, July 2012).
The views expressed by contributing authors are not necessarily those of Jordan Publishing and should not be considered as legal advice.
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