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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Fennelly v Connex South Eastern Ltd.  EWCA Civ 5568 (11 December 2000)
Cite as:  EWCA Civ 5568
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BROMLEY COUNTY COURT
(HIS HONOUR JUDGE CRYAN)
B e f o r e :
LORD JUSTICE BUXTON
|- v -|
|CONNEX SOUTH EASTERN LTD||Respondent|
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2HD
Telephone No: 020 7421 4040
Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR PEARCE O'HIGGINS (instructed by Berryman Lace Mawer, London EC2M 5QN) appeared on behalf of the Respondent
Crown Copyright ©
"As the claimant made his way towards the top of the stairs Mr Sparrow called out after him: 'Where is your ticket?' The claimant heard this. He looked back, but for whatever reason continued to walk on. Mr Sparrow followed him swiftly down the stairs. An exchange then took place in which the claimant, much less than sensibly, was rather offensive to Mr Sparrow. He was asked to show his ticket but refused to do so on the basis that he had already shown it to another inspector. He carried on walking. In the context I do not regard that response as reasonable. ... Mr Sparrow responded by barging past the claimant, requiring him to stop by standing in front of him. He again demanded to see the ticket, this time angrily. Mr Fennelly produced the ticket, whether, as Mr Sparrow says, he pushed it in his face so close that he could not read it I cannot say, but I accept that Mr Sparrow snatched the ticket the better to look at it. This was also discourteous, but to a degree excusable. At that point Mr Fennelly said words to the effect 'there is no need for that, do not be a fool'. This was offensive language having regard to the fact that it was Mr Fennelly who was acting unreasonably and Mr Sparrow who was doing his duty, if perhaps a little robustly."
"I find that Mr Sparrow responded to being called a fool with words to the effect that if Mr Fennelly said that again, he would punch him in the face. There was more conversation about the fact that Mr Sparrow ought to have checked with his colleague as to whether a ticket had been shown. That was within a short compass of time. The ticket was handed back by Mr Sparrow to Mr Fennelly who went on his way. As Mr Fennelly put it, 'having received my ticket I began to walk down the steps and suddenly was pulled'. Mr Sparrow used his right arm to put Mr Fennelly in a headlock and drag him down a few steps whilst continuing to hold Mr Fennelly's head near his chest in the headlock. I am satisfied that he said words to the effect of 'I have had enough of this'. I reject the suggestion that the claimant pushed Mr Sparrow then or at all. I accept Mr Adams' evidence"
"that it was a noticeable headlock. It went on long enough for damage and it was too long for a correction of balance as described by Mr Sparrow. It was an assault."
"... it was either (1) a wrongful act authorised by the master, or (2) a wrongful an unauthorised mode of doing some act authorised by the master. It is clear that the master is responsible for acts actually authorised by him for: liability would exist in this case, even if the relation between the parties was real or one of agency, and not one of service at all. But a master, as opposed to the employer of an independent contractor, is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes - although improper modes - of doing them."
"Lord Wilberforce in Kooragang Investment Pty Ltd v Richardson and Wrench Ltd  AC 471 noted that in recent years the tendency has been toward more liberal protection of third parties. So, in establishing a particular employee's 'course of employment', the court should not dissect the employee's tasks into component parts but should ask in a general sense: 'what was the job at which he was engaged for his employer?' ... Sometimes the court will use the phrase 'was the employee on a frolic of his own'?, to conclude that the tort was not committed during the course of employment. This involves a finding that the employee has so clearly departed from the scope of his employment that the employer will not be liable for his acts."
"Was it so divergent from the employment as to be plainly alien to and wholly distinguishable from the employment?"
"One cannot, I venture to think, imagine a more unauthorised act by any employer, a more reckless act by any employee..."
"The act of a workman in lighting his pipe or cigarette is an act done for his own comfort and convenience and, at least generally speaking, not for his employers benefit. But that last condition, however, is no longer essential to fix liability on the employer: Lloyd v Grace Smith & Co  AC 716 The duty of the workman to his employer is so to conduct himself in doing his work as not negligently to cause damage either to the employer himself or his property or to third persons or their property..."
"I must ask what it was that Mr Sparrow was authorised to do? He was there to protect his employer's revenue. He was authorised to check tickets. He had authority to block the onward movement of passengers by standing in front of them or the like. If necessary he could ask them to leave the station. What he did until the assault was arguably within his authority. Did the attack on Mr Fennelly constitute merely a wrongful and unauthorised mode of doing the duty he was authorised to do, or was it done for his own purposes and not in his master's interests."
"I have concluded that the task which the defendant had authorised Mr Sparrow to do had concluded, albeit just. According to his own evidence Mr Fennelly was walking on. The defendants, Connex South Eastern, have no interest in what Mr Sparrow did next. He was not by then carrying out any task which they authorised or wanted him to do. By way of analogy he was not driving for them, albeit badly. He was not ejecting a passenger in accordance with his authority, albeit violently. He was not protecting their property by teaching someone a lesson. He had fulfilled and concluded his authorised role. He had become personally angry and was pursuing his own ends. The defendants cannot be said to be vicariously liable for that. He was doing nothing that he was authorised to do. He was not going about his employer's business but his own."
"It may be accepted that the keeping of order among the passengers is part of the duties of a conductor. But there was no evidence of disorder among the passengers at the time of the assault. The only sign of disorder was that the conductor had gratuitously insulted the plaintiff, and the plaintiff had asked him in an orderly manner not to do it again... To describe what he did in these circumstances as an act of quelling disorder seems to their Lordships to be impossible on the evidence... The evidence falls far short of establishing an implied authority to take violent action where none was called for...
Their Lordships are of opinion that no facts have been proved from which it could be properly inferred that there was present in that bus an emergency situation, calling for forcible action, justifiable upon any express or implied authority, with which the appellants could be said on the evidence to have clothed the conductor."
"In my judgment, all the evidence here, such as it is, shows that the conduct of the assailants was a reaction to the damage to the door. There is no evidence that related to some private quarrel or incident which occurred subsequently to and unrelated to the performance of the employee's duty. This distinguishes the case of Kepple Bus Co Ltd v Sa'ad bin Ahmad  1 WLR 1082 where the assault by the bus conductor was occasioned by the plaintiff's protest at his use of bad language to another passenger. It also distinguishes the case of Daniels v Whetstone Entertainments and Allender  2 Lloyds's Rep 1, where the assault was committed in revenge or retaliation for an injury which the aggressor mistakenly believed to have been committed on him by the plaintiff and where the aggressor disobeyed the specific instructions of the defendants' manager to return to the dance floor. Those are cases where the assailant is acting solely for his own purposes, albeit at a time when he is on duty. Mr Coleman submitted"
"that the only purpose or motivation of the bouncers was to have and enjoy a fight and that was quite unconnected with the servant's duties.
I do not accept that. Not only was the attack so closely related in time and place for it to be the only proper inference that they were reacting to the damage to the door, but the evidence of the plaintiff to which I have referred, makes it plain that they wished to teach a lesson to the person who had caused that damage. That was the sole purpose of the attack. It was, of course, an unlawful and unauthorised manner of carrying out the duty to which I have referred, but I have no doubt that such is what it was. They were not pursuing their own purposes."