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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Weddall v Barchester Healthcare Ltd (Company No.02792285) [2012] EWCA Civ 25 (24 January 2012) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2012/25.html Cite as: [2012] EWCA Civ 25 |
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ON APPEAL FROM NORWICH COUNTY COURT
HIS HONOUR JUDGE MOLONEY QC
and
ON APPEAL FROM READING COUNTY COURT
HIS HONOUR JUDGE ELLY
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE MOORE-BICK
and
LORD JUSTICE AIKENS
____________________
Richard Weddall |
First Appellant |
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- and - |
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Barchester Healthcare Limited (Company No.02792285) |
First Respondent |
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and |
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Wallbank |
Second Appellant |
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- and - |
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Wallbank Fox Designs Limited |
Second Respondents |
____________________
Mr Stephen Campbell (instructed by Plexus Law) for the First Respondent
Mr Thomas Cleeve (instructed by Chan Neill) for the Second Appellant
Mr Christian Du Cann (instructed by Greenwoods ) for the Second Respondent
Hearing date : 12 October 2011
____________________
Crown Copyright ©
LORD JUSTICE PILL :
The facts
"Why didn't you load the rest of it on? You just lost an oven load of heat."
Wallbank was not angry but was frustrated because he had spoken to Brown on the subject before. Brown did not reply.
Judgments below
"This tort was plainly occasioned by the employment and I entirely accept the submissions of the claimant that it would never have happened but for the employment. But equally, it is clear that Mr Marsh was in no sense carrying out any duties of his employment, or taking advantage of any opportunities given to him by his employment, when he chose to return to the home and there carried out this attack. It was the spontaneous criminal act of a drunken man who was off duty; he was in no sense acting, as I have said, in the course of his employment or the opportunities given by his employment."
"An employer is not to be held vicariously liable for every act that one person might commit against another occasioned by, growing from, their employment but not otherwise sufficiently specifically connected with it. It seems to me that this case falls into that category. I hesitate to use the old parlance of 'a frolic of his own', but it appears to me, as I have said, that Mr Marsh was here acting personally for his own reasons, in his own context and on the basis of his own passions and feelings and that it would not be fair or just to hold his employer, and Mr Weddall's employer, vicariously liable for those acts merely because of the circumstances that I have outlined above."
"As the authorities repeatedly emphasise, this test is a matter of applying the facts of the case and applying the law to those facts. The facts of this particular case are that Mr. Wallbank and Mr. Brown were fellow employees. There is no suggestion that Mr. Wallbank was doing anything other than the job which he was employed to do, which was to manage the business and to see that the work was completed and that it was done efficiently. There is nothing to suggest that he was acting in any sense improperly in disciplining Mr Brown, if that is what his remark may be taken to be doing. Nor, indeed, is there anything which falls outside the scope of his employment in helping Mr Brown with the work to ensure that it is done. But of course the test is not whether Mr. Wallbank was acting within the scope of his employment; the test, of course, is what Mr. Brown was doing. As a matter of fact I have come to the conclusion that, in assaulting his employer, Mr. Brown was not acting in the course of his employment; that 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. I have given careful consideration to the matter which was submitted within the claimant's submissions that an employee has a general duty towards his fellow employees to protect their safety. But the conclusion that I have come to is that in acting as he did Mr. Brown did act outside the scope of his employment and, applying the test (as I said) set out in Clerk and Lindsell and in the Gravil v. Carroll case, it seems to me that therefore this case does not have that close connection with the employment which is required to establish vicarious liability. In those circumstances, on the issue of liability, I find in favour of the defendants."
Submissions and authorities
"21. Vicarious liability is a principle of strict liability….This consideration underlines the need to keep the doctrine within clear limits….
23. …the Board is firmly of the view that the policy rationale on which vicarious liability is founded is not a vague notion of justice as between man and man. It has clear limits….
…..The principle of vicarious liability is not infinitely extendable."
That guidance must be kept in mind when the expression 'course of employment' is applied to facts found.
"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. On the facts of the case the answer is yes. After all, the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in A House."
Lord Clyde stated, at paragraph 37:
"What has essentially to be considered is the connection, if any, between the act in question and the employment. If there is a connection, then the closeness of that connection has to be considered. 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 had authorised."
"If the employer's objectives cannot be achieved without a serious risk of the employee committing the kind of wrong which he has in fact committed, the employer ought to be liable. The fact that his employment gave the employee the opportunity to commit the wrong is not enough to make the employer liable. He is liable only if the risk is one which experience shows is inherent in the nature of the business."
"What is critical is that attention should be directed to the closeness of the connection between the employee's duties and his wrongdoing and not to verbal formulae."
He added, at paragraph 80:
"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."
Lord Millett also cited the decision of the Supreme Court of Canada in Bazley v Curry [1999] 174 DLR (4th) 45, to which reference will be made.
"He abused the special position in which the school had placed him to enable it to discharge its own responsibilities . . ."
". . . Perhaps the best general answer is that the wrongful conduct must be so closely connected with acts the partner or employee was authorised to do that, for the purpose of the liability of the firm or the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the partner while acting in the ordinary course of the firm's business or the employee's employment."
Lord Nicholls added, at paragraph 24, that decisions require "a value judgment by the court."
". . . But the circumstances in which an employer may be vicariously liable for his employee's intentional misconduct are not closed. All depends on the closeness of the connection between the duties which, in broad terms, the employee was engaged to perform and his wrongdoing."
"21. As we see it, the authorities show that the essential question is that posed in Lister and adopted in Mattis, namely whether the tort is so closely connected with the employment, that is with what was authorised or expected of the employee, that it would be fair and just to hold the employer vicariously responsible. In answering that question the court must take account of all the circumstances of the case, as Lord Steyn put it, looking at the matter in the round. The authorities show that it will ordinarily be fair and just to hold the employer liable where the wrongful conduct may fairly and properly be regarded as done while acting in the ordinary course of the employee's employment (per Lord Nicholls). This is because an employer ought to be liable for a tort which can fairly be regarded as a reasonably incidental risk to the type of business being carried on (per Lord Steyn).
22. In these circumstances we would accept Mr Seaward's submission that it is not appropriate to ask a broader question, namely whether in all the circumstances of the case it would be fair and just to hold the club liable. The critical factor is the nature of the employment and the closeness (or otherwise) of the connection between the employment and the tort. The question what is fair and reasonable must be answered in the context of the closeness or otherwise of that connection. The answer to the question in each case of course depends upon its particular facts.
23. There was in our opinion a very close connection between the punch and the first defendant's employment. He was employed to play rugby for the club and was doing so at the time as a second row forward. As we said in [4] above, when he punched the claimant there was still a melée of the kind which frequently occurs during rugby matches, notwithstanding the fact that the whistle has gone. The DVD shows that the melée was part of the game. It was certainly not in any way independent of it. The melée was just the kind of thing that both clubs would have expected to occur. Regrettably the throwing of punches is not uncommon in situations like this, when the scrum is breaking up after the whistle has gone. Indeed, they can fairly be regarded as an ordinary (though undesirable) incident of a rugby match. In these circumstances there was in our opinion a close, indeed a very close, connection between the first defendant's employment as a second row forward and his punching and injuring the claimant as a prop on the other side."
". . . was the assault 'so closely connected' with what Mr Pollock authorised or expected of Cranston in the performance of his employment as doorman at his nightclub, that it would be fair and just to conclude that Mr Pollock is vicariously liable for the damage Mr Mattis sustained when Crantson stabbed him?"
"Cranston was indeed employed by Mr Pollock to keep order and discipline at the nightclub. That is what bouncers are employed to do. Moreover, however, he was encouraged and expected to perform his duties in an aggressive and intimidatory manner, which included physical man-handling of customers. . .
It was not perhaps anticipated that Cranston's behaviour would be counter-productive, and that by way of self-defence, and indeed revenge, his behaviour would provoke a violent response. That is because the customers with whom he tangled were supposed to be intimidated, and to go quietly. The whole point of any physical confrontation with Mr Pollock's customers in the nightclub, whether engineered by Cranston or not, was that he should win it."
". . . The stabbing of Mr Mattis represented the unfortunate, and virtual culmination of the unpleasant incident which had started within the club, and could not fairly and justly be treated in isolation from earlier events, or as a separate and distinct incident. Even allowing that Cranston's behaviour included an important element of personal revenge, approaching the matter broadly, at the moment when Mr Mattis was stabbed, the responsibility of Mr Pollock for the actions of his aggressive doorman was not extinguished. Vicarious liability was therefore established. Accordingly the appeal on this ground must succeed."
"When one substitutes the test of whether Robinson's acts were so closely connected with his employment that it would be just and reasonable to hold his employer liable, the answer seems clear to their Lordships. They are satisfied that when one applies this test the employer was vicariously liable for the shooting and the judge was quite justified in so holding. They are unable to agree that it fell on the side of the line that would make it an act of revenge or 'private retaliation', as the Court of Appeal held."
"17. . . . His job was to deal with the public in relation to tickets and to interfere with their progress if they did not produce such a ticket; in other words to deal with the public in that way, none of that was Mr Sparrow able to do without the authority of his employer. His employer was not able to do that, or to have Mr Sparrow do it on his behalf, had he not had statutory authority under the Railway Managements Acts. Absent Mr Sparrow's status as a ticket inspector he would have had no right at all to call after Mr Fennelly and to block him in this way or otherwise to impede his progress. Had an ordinary fellow passenger done what Mr Sparrow did in checking tickets it would have been an assault.
18. Against that background I consider it artificial to say that just because Mr Fennelly was walking on, what happened next - immediately next - was divorced from what Mr Sparrow was employed to do. The necklock sprang directly out of the altercation. The altercation was being conducted by Mr Sparrow on behalf of his employer, dealing as he thought appropriate with a passenger who was not reacting as the employer would have wished; it would not have occurred without Mr Sparrow's power to inspect tickets when he was on his employers' premises. It is difficult to say in any realistic terms that this was not all one incident. That is underlined by the finding that the judge made about what Mr Sparrow said when he was actually putting Mr Fennelly into the necklock. When he said, as the judge found and as I have already indicated, words to the effect of "I have had enough of this", he was referring back to the aggravation and obstruction that Mr Fennelly had caused him when he was looking at his ticket."
". . . Whatever may have been the position in the past, the decisions in Lister v Hesley Hall, Dubai Aluminium v Salaam and the cases which have followed them have established that the test involves evaluating the closeness of the connection between the tort and the purposes for which the tortfeasor was employed. While all the circumstances have to be taken into account, the authorities support the view that when making that evaluation it is appropriate to consider whether the wrongful act can fairly be regarded as a risk reasonably incidental to the purpose for which the tortfeasor was employed."
"What she did was a deliberate act which had nothing whatsoever to do with anything she was employed to do. It was not an improper way of doing her job; it was something wholly outside her job."
The step taken in Lister was to make employers vicariously liable for conduct which arose from carrying out duties improperly; in Lister those of a warden dealing with children at a school. That principle would not necessarily have required a different decision in Aldred.
"A broad approach should be adopted. Time and place were always relevant, but may not be conclusive and the fact that the employment provides the opportunity for the act to occur at a particular time and place is not necessarily enough."
"an unrelated and independent venture of his own, a personal matter, rather than a matter connected to his authorised duties."
"The cases are all consistent with the dictum of McLachlin J in Bazley v Curry . . . that:
...an incidental or random attack by an employee that merely happens to take place on the employer's premises during working hours will scarcely justify holding the employer liable. Such an attack is unlikely to be related to the business the employer is conducting or what the employee was asked to do...
That is the position here. It is clear from the pursuer's averments that Mr Reid's actions in pulling her pony tail were unconnected with his employment. The defenders' business was frozen food storage. Mr Reid was employed as part of that business, albeit that he had a supervisory role over certain staff and duties in relation to health and safety. It was not part of the defenders' business, or Mr Reid's employment, to care for, look after or protect the pursuer in the manner which ultimately rendered the defendants in Lister v Hesley Hall (supra) vicariously liable. Equally, in pulling the pursuer's ponytail, Mr Reid was not purporting to do anything connected with his duties relating to health and safety in the Portacabin or in relation to his supervision of the staff."
"Whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability. Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer's desires. Where this is so, vicarious liability will serve the policy considerations of provision of an adequate and just remedy and deterrence. Incidental connections to the employment enterprise, like time and place (without more), will not suffice. Once engaged in a particular business, it is fair that an employer be made to pay the generally foreseeable costs of that business. In contrast, to impose liability for costs unrelated to the risk would effectively make the employer an involuntary insurer."
"(a) the opportunity that the enterprise afforded the employee to abuse his or her power;
(b) the extent to which the wrongful act may have furthered the employer's aims (and hence be more likely to have been committed by the employee);
(c) the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer's enterprise;
(d) the extent of power conferred on the employee in relation to the victim;
(e) the vulnerability of potential victims to wrongful exercise of the employee's power."
Discussion and Conclusions
Weddall
Wallbank
Result
LORD JUSTICE MOORE-BICK :
LORD JUSTICE AIKENS :