TORTS - EMPLOYMENT
ASSAULT : EMPLOYEES : EMPLOYERS : VICARIOUS LIABILITY : EMPLOYEES' VIOLENT REACTIONS TO INSTRUCTIONS : CONNECTION BETWEEN TORT AND EMPLOYMENT : APPROACH TO NATURE OF EMPLOYMENT AND ACTS REASONABLY INCIDENTAL TO EMPLOYEE'S DUTIES
There had been a sufficiently close connection between a junior employee's spontaneous assault of a senior employee when reacting to instructions, and the purpose of his employment, to hold the employer vicariously liable for his actions.
In conjoined appeals, the first appellant (X) and the second appellant (Y) appealed against decisions that their respective employers, the first respondent (B) and the second respondent (W), were not vicariously liable for assaults inflicted by employees who were deemed not to be acting in the course of their employment. X, who had worked at a care home operated by B, had been on duty and was required to replace an employee on the nightshift who had called in sick. X telephoned another employee for assistance. That employee was drunk at the time and refused. Twenty minutes later, he attended the care home and assaulted X. The judge held that B was not vicariously liable for the employee's acts as he was acting on a frolic of his own.
Y had been the managing director of W, a manufacturing company and worked in a factory. Y noticed that an employee had only loaded one piece of furniture through an oven, wasting a substantial amount of fuel. Y raised it with the employee and told him to "come on" with the intention of helping him load more furniture. The employee assaulted Y. The judge held that W was not vicariously liable for the employee's acts as the assault took the employee outside the course of his employment. X submitted that when the employee responded to the call he was acting in the course of his employment and that his reaction and the subsequent assault should all be treated as part of a single incident, as nothing had taken the employee outside the course of his employment. Y submitted that when the employee assaulted him, the employee was reacting, albeit inappropriately, to instructions given by him and that a violent reaction to instruction was an act during the course of employment.
HELD: (1) In relation to X, the judge's conclusion and reasoning had been correct. The employee's attendance at the care home and attack 20 minutes after their conversation was an independent venture which was separate and distinct from his employment. The instruction was no more than a pretext for violence wholly unconnected with his role. It was irrelevant that he sometimes had to use moderate force on residents and had been trained to do so, Mattis v Pollock (t/a Flamingos Nightclub) (2003) EWCA Civ 887, (2003) 1 WLR 2158 considered (see paras 44-46 of judgment). (2) There was no distinction between violence towards a third party and violence towards a fellow employee when considering vicarious liability; neither could there be any distinction between violence inflicted by a senior or junior employee, Wilson v Exel UK Ltd (t/a Exel) (2010) CSIH 35, 2010 SLT 671 considered. The circumstances in which an employer might be vicariously liable for an employee's intentional misconduct were not closed, Lister v Hesley Hall Ltd (2001) UKHL 22, (2002) 1 AC 215 considered. In Y's, the violence was closely related to the employment in time and space, and it was a spontaneous and almost instantaneous response to an instruction. Reactions to instructions, normally by carrying them out was a part of employment. Recent case law demonstrated the need to take a broad view to the nature of employment and what was reasonably incidental to an employee's duties under it, and when considering violence used by an employee, Fennelly v Connex South Eastern Ltd (2001) IRLR 390 CA (Civ Div), Lister, Mattis, Brown v Robinson (2004) UKPC 56 and Gravil v Carroll (2008) EWCA Civ 689, (2008) ICR 1222 considered. It would be unwise to treat any of the expressions within the authorities as a definitive test for whether an employee's wrongful conduct was committed during the course of their employment. Each case was to be determined on its facts and by reference to the broad test in Lister, which involved an element of value judgment, Lister and Dubai Aluminium Co Ltd v Salaam (2002) UKHL 48, (2003) 2 AC 366 considered. Whilst Y's broad proposition that an employee who reacted violently towards another employee giving an instruction was inevitably acting within the course of his employment went too far, as a matter of loss distribution, it might be unfair to deprive an employee of a remedy who had been assaulted by way of a reaction to an instruction, Lister, Mattis and Gravil considered. The possibility of friction was an inherent part of any employment relationship, but particularly in a factory. Frustrations leading to a reaction involving some violence were predictable. The risk of an over-robust reaction was a risk created by the employment, which might be reasonably incidental to it rather than unconnected. Not every act of violence by a junior to a senior employee in response to an instruction would make the employer vicariously liable. However, in the instant case, W was vicariously liable for the spontaneous force with which the employee responded to the instruction.
First appellant's appeal dismissed, Second appellant's appeal allowed.