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Cite as: [2010] EWCA Civ 1207, [2011] IRLR 343

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Neutral Citation Number: [2010] EWCA Civ 1207
Case No: A3/2009/2466

(Mr. Martin Mann Q.C.)
2008 Folio 147

Royal Courts of Justice
Strand, London, WC2A 2LL
27 October 2010

B e f o r e :



and others
- and -

and another


Mr. Jeffrey Terry (instructed by DWF LLP) for the appellant
Mr. Tim Marland (instructed by Waltons & Morse LLP) for the respondents
Hearing dates : 14th July 2010



Crown Copyright ©

    Lord Justice Moore-Bick :

  1. The respondents, Brink's Global Services Inc., Brink's (UK) Ltd and Brink's Ltd, are members of a group of companies which provides a worldwide door-to-door service for the carriage of goods. Since for the purposes of this appeal nothing turns on the identity of any individual respondent, it is convenient to refer to them collectively as "Brink's". The appellant, Igrox Ltd, provides fumigation services, including the fumigation of goods packed in containers for carriage abroad.
  2. In May 2007 Brink's entered into a contract with a London bank for the carriage from London to Ahmedabad, India of 627 bars of silver. The silver, which was packed on wooden pallets, was put into a standard shipping container provided by the ocean carrier, Hyundai Merchant Marine (Europe) Ltd ("Hyundai"), at the bank's vaults, from which it was collected by Brink's. The container was sealed before leaving the bank. The silver itself did not pose any risk of insect infestation, but the wooden pallets on which it was carried had to be fumigated to eliminate any danger of that kind before the container could be put on board the vessel for carriage to India.
  3. The container was taken to the Thamesport container terminal on the Isle of Grain, Kent, where it was placed in the secure fumigation compound. Brink's instructed Hyundai to arrange fumigation and Hyundai gave corresponding instructions to Thamesport, which in turn engaged Igrox to carry out that task for its own account. At the trial Brink's contended that it had entered into contractual relations with Igrox through the agency of Thamesport, but the judge rejected that argument and his decision on that point is not challenged. Nonetheless, it is accepted that as bailee of the goods Brink's had a sufficient interest in them to entitle it to pursue a claim for any loss or damage that might be caused to them by a third party.
  4. Thamesport and Igrox had established a detailed procedure for fumigating containers which is set out in full in the judgment below. It involved the removal of the original seal, visual inspection of the goods, the application of fumigant, closure of the container and re-sealing with a red warning notice, the subsequent removal of the seal and ventilation of the container after the fumigant had had time to work and finally re-sealing for onward carriage.
  5. Igrox instructed two of its employees, Mr. Timothy Belsey and Mr. David Renwick, to carry out the fumigation of the container. On 11th May 2007 they arrived in separate vehicles at the container at 8.25 am. One or other of them removed the seal and they then made a brief visual inspection of the contents. They should then have gassed the container, but they failed to do so. They did, however, re-seal it with the red warning seal, thus giving the impression that it had been treated. They both then drove away soon after 9.00 am. At about 9.41 am Renwick returned but left again after only a few minutes. At about 10.34 am he returned to the container again, entered it and stole 15 bars of silver. The final steps in the fumigation process were subsequently carried out as if the container had been treated and it was re-sealed. The theft was discovered on 14th May by Brink's in the course of carrying out a security check. The silver was never recovered.
  6. The Deputy Judge held that Renwick had committed the theft in the course of his employment and that Igrox was therefore vicariously liable for the loss of the silver. In reaching that conclusion he applied the principles developed in Lister v Hesley Hall Ltd [2001] UKHL 22, [2002] 1 AC 215, Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48, [2003] 2 AC 366, Mattis v Pollock [2003] EWCA Civ 887, [2003] 1 WLR 2158 and Bernard v Attorney General of Jamaica [2004] UKPC 47, [2005] IRLR 398.
  7. The judge's findings about the circumstances leading up to the theft played an important part in his decision. He reached the conclusion that at a relatively early stage in the procedure Renwick had conceived a plan that would enable him to return safely to the container to commit the theft once Mr. Belsey was out of the way. On behalf of Igrox Mr. Terry submitted that the judge's findings in that respect were flawed because he had overlooked certain uncontroversial parts of the evidence which made it clear that it had not been Renwick's decision not to gas the container and that in any event he had protective equipment that would have allowed him to enter the container even if it had been gassed. All that was designed to reinforce his primary argument that when Renwick returned to the container and stole the silver he was acting outside the scope of his employment. It is convenient to deal with the appeal on the facts first.
  8. The circumstances surrounding the theft
  9. The fumigation compound at Thamesport is a secure area covered by closed circuit television cameras. As a result, the actions of Mr. Belsey and Renwick in the immediate vicinity of the container were recorded and provided detailed and incontrovertible evidence of their movements. It is not surprising, therefore, that the judge concentrated on that part of the evidence. What the CCTV evidence could not show, however, was what had gone on elsewhere in the compound and why the container had not been gassed.
  10. The judge made the following findings:
  11. "27. It is important at this point to examine Renwick's conduct a little more closely, since this is not a case in which an employee's duty simply provided him with an opportunity to steal of which he took advantage. He would have known he could safely open the container doors if the container had not been gassed, and he could therefore judge that he could safely steal the silver bars if he returned as a time when Mr. B. was taking a coffee or tea-break, which, as it happened, he seems to have been. It is a ready inference, which I draw, that this, or something very like it, was his state of mind. The only precaution he had to take was to ensure that the container was not gassed, and this he clearly did albeit the evidence did not reveal whether it was his or Mr. B's decision not to gas the container. It would not assist Igrox had the evidence revealed that Mr. B. was responsible for the omission to gas the container because it was equally open to Renwick to ensure that it was gassed, as it should have been. The fact that he plainly did not ensure that it was gassed is, in my judgment, strong circumstantial evidence that he had conceived a dishonest design, perhaps there and then, which his omission to carry out [the gassing] would enable him to bring to fruition when Mr. B was out of the way and he was alone.
    . . .
    33. In my judgment, it is beyond argument that the failure to gas the container facilitated the theft and that the theft was the fruition of Renwick's dishonest design (see paragraph 27). . . . It was not Renwick's employment which made the theft possible. On the contrary, it was Renwick's improper performance of his duty as an employee as part of his dishonest design which made the theft possible. . . "
  12. The thrust of these findings is that at some point prior to the stage at which the container should have been gassed Renwick decided to ensure that it was not gassed so that he could return safely and steal some of the contents when Mr. Belsey was out of the way. Although he did not think that the evidence enabled him to decide who had taken the decision not to gas the container, the judge found that Renwick had ensured by some means or other that it had not been gassed and had done so in order to enable him to carry out the theft.
  13. Mr. Terry submitted that in making those findings the judge had overlooked the evidence of Mr. Belsey, who as supervisor bore primary responsibility for ensuring that the fumigation was properly carried out. Mr. Belsey had provided a statement to the police describing his part in the matter on which Igrox sought to rely at the trial. In it he said that after opening the container he had marked the pallets using paint and a stencil to show that they had been treated and had gone to the Igrox store on site to fetch the necessary chemicals. He found that there were none in stock, so he took the decision not to gas the container after all, but to carry out the rest of the procedure as if it had been gassed.
  14. Igrox had served a notice of its intention to rely on Mr. Belsey's statement and since his evidence was not challenged it was thought unnecessary to call him to give evidence in person. I think it clear, therefore, that his evidence was before the court, but in view of his finding that the evidence did not reveal who had taken the decision not to gas the container, the judge must have overlooked it. In the circumstances it seems unlikely that any emphasis was placed on it in the course of counsel's final submissions, but that in turn may be because Brink's had not suggested that the failure to gas the container had been part of a dishonest design on the part of Renwick.
  15. Mr. Belsey's evidence makes it clear that the failure to gas the container was not itself part of a dishonest plan by Renwick, so the judge's inference that he deliberately made preparations for the theft in the course of carrying out the initial stages of the fumigation operations must be rejected. In those circumstances the evidence of Mr. Braithwaite, Igrox's managing director, that Renwick had protective equipment that would have allowed him to enter the container even if it had been gassed, does not in my view carry the matter any farther, since it tends to show only that he could have returned to steal from it without having made prior preparations to do so.
  16. Vicarious liability
  17. Mr. Terry's principal submission was that Renwick did not commit the theft in the course of his employment; rather, his employment by Igrox to fumigate the container merely provided him with the opportunity to steal from it. This distinction is well demonstrated by the case of Heasmans v Clarity Cleaning Co. Ltd [1987] I.C.R. 949 on which he placed considerable reliance. In that case the defendant was engaged to clean the plaintiff's offices and office equipment, including the telephones. One of the defendant's cleaners used the plaintiff's telephone to make international calls at considerable expense. The plaintiff sought to recover from the defendant on the grounds that it was vicariously liable for the cleaner's tort. The claim succeeded at first instance, but the decision was overturned on appeal on the grounds that to establish vicarious liability there had to be a nexus other than mere opportunity between the circumstances of employment and the wrongful act.
  18. At the time of the decision in Heasmans the recognised test for distinguishing between acts and omissions committed in the course of employment (for which the employer is vicariously liable) and acts and omissions committed outside the scope of employment (for which he is not) was whether the act or omission was authorised by the employer or could be regarded as an unauthorised way of carrying out an authorised act. In the latter case, the fact that the act (or perhaps the operation) was authorised, in the sense of being part of what the employee was employed to do, provided the basis for holding the employer liable. Thus, in Heasmans itself, the court held that the unauthorised use of a telephone could not be regarded as the cleaning of it in an unauthorised manner and so the employer was not liable. In the course of his judgment Purchas L.J. said at page 954C-955D:
  19. "In certain circumstances the law has had no difficulty in holding the master vicariously liable for the acts of his servant, e.g. where the master has approbated the dishonest act of the servant, or where the servant commits the dishonest act in the furtherance of the master's purpose: see Lloyd v Grace, Smith & Co [1912] AC 716. Thus, where the master delegates his responsibility as a bailee or custodian or guard to his servant, and in the course of acting as delegate the servant commits a crime, then the master is vicariously responsible: see Morris v C.W. Martin & Sons Ltd [1966] 1 Q.B. 716 and Photo Production Ltd v Securicor Transport Ltd [1980] AC 827. But, where the act is one quite outside the purpose for which the servant was employed, then the master is not liable, e.g. when the servant "is on a frolic of his own." The more difficult question is the one which arises in this case, namely: is the master liable for a tortious or even criminal act committed by the servant which is wholly outside the scope of his employment but in circumstances in which the opportunity to commit the act is created by the servant's employment?"
  20. Then, having referred to the judgments of Diplock L.J. and Lord Denning M.R. in Morris v C.W. Martin & Sons Ltd [1966] 1 Q.B. 716 he said:
  21. "These authorities support the proposition that before the master can be held to be vicariously liable for the acts of the servant there must be established some nexus other than mere opportunity between the tortious or criminal act of the servant and the circumstances of his employment. In the present case, apart from the obligation to dust and once a week to disinfect the telephone, there is nothing more than the provision of the opportunity to commit the tort or crime."
  22. Nourse L.J. said this at page 956A-C:
  23. "A master is not liable for a tort committed by his servant unless it is committed in the course of the servant's employment. An act is not done in the course of the servant's employment if it is one which is not authorised by the master. But if an authorised act is done in an unauthorised manner it is done in the course of the employment.
    In the present case Bonsu was, broadly speaking, authorised to clean the telephones. He was not authorised to use them. The unauthorised use of a telephone cannot properly be regarded as the cleaning of it in an unauthorised manner. It is another and entirely separate act. But it was suggested that the giving of access to the premises and to their contents to the defendant, and through it to Bonsu, in some way amounted to a bailment of the contents or the equivalent. Reliance was placed on the decision of this court in Morris v C.W. Martin & Sons Ltd [1966] 1 Q.B. 716. That is an impossible view of this case. Although Bonsu was no doubt required to clean the telephones carefully, he was required to handle them for that purpose only. He was neither required nor authorised to take custody of them. He would, for example, have been under no duty to prevent a third party from using them. I agree with Purchas L.J. that the judgments in the case cited point inevitably to a decision of this question in favour of the defendant."
  24. Although the concept of an authorised act done in an unauthorised manner could be applied without too much difficulty in many circumstances, there were many other cases in which it appeared too artificial to be satisfactory or to lead to anomalous results. That was most clearly so in cases of sexual abuse of young people by those responsible for their well-being. In Lister v Hesley Hall the court was concerned with sexual abuse of young people by the warden of a hostel which formed part of a residential school. This court held, following its earlier decision in ST v North Yorkshire County Council [1999] IRLR 98, that the warden's employer could not be held vicariously liable for his tortious conduct because his actions could not be viewed as an unauthorised manner of performing his the duties he was engaged to perform. The House of Lords overturned that decision and adopted instead a more flexible principle which concentrates on the degree of connection between the wrongful acts and the employment in question. As Lord Millett pointed out, it is stretching language to breaking-point to describe a series of deliberate sexual assaults by a person charged with the duty of looking after young people as merely a wrongful and unauthorised mode of performing that duty. When dealing with ST v North Yorkshire County Council Lord Steyn put the matter in this way:
  25. "25. In my view the approach of the Court of Appeal in Trotman v North Yorkshire County Council [1999] LGR 584 was wrong. It resulted in the case being treated as one of the employment furnishing a mere opportunity to commit the sexual abuse. The reality was that the county council were responsible for the care of the vulnerable children and employed the deputy headmaster to carry out that duty on its behalf. And the sexual abuse took place while the employee was engaged in duties at the very time and place demanded by his employment. The connection between the employment and the torts was very close."

    And a little later he said of the case before the House:

    "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."
  26. Of their Lordships only Lord Clyde referred to the case of Heasmans, which he regarded as providing an example of the principle that in order to establish vicarious liability there must be some greater connection between the tortious act of the employee and the circumstances of his employment than the mere opportunity to commit the act which has been provided by the access to the premises which the employment has afforded.
  27. In Dubai Aluminium v Salaam Lord Nicholls, with whom the other members of the Appellate Committee agreed, suggested in paragraph 23 of his speech that the best general formulation of the test for vicarious liability is that
  28. "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. "

    He recognised, however, that this imports a value judgment by the court having regard to all the circumstances of the case, an exercise in which he considered that a significant degree of assistance may often be derived from previous decisions. However, as was noted by this court in Mattis v Pollock, Lord Nicholls did not say that any earlier decision on similar facts should be regarded as authoritative or even that the reasoning or outcome could necessarily be regarded as sound in the light of more recent decisions of the House.

  29. The principle of sufficiently close connection has been applied in a number of subsequent cases to which Mr. Terry drew the court's attention. In Mattis v Pollock the claimant was stabbed and severely injured by a doorman employed by the defendant at a night club. The doorman was known to have a violent character and was expected to display a certain amount of aggression in carrying out his duties. The incident in which the stabbing occurred followed an earlier fight between the doorman and a group of young people to whom he had refused entry to the club, in the course of which he had been hit with a bottle. The doorman escaped to his flat nearby. When the group returned to the area of the club the doorman reappeared and attacked them with a knife out of a desire for revenge, injuring the claimant. The court held that the doorman's actions were sufficiently closely connected to his employment because the stabbing represented the culmination of an incident which had started within the club and so could not fairly and justly be treated as a separate and distinct incident.
  30. In Attorney General of the British Virgin Islands v Hartwell [2004] UKPC 12, [2004] 1 WLR 1273 a police officer left the island on which he was on duty and went to a bar on a neighbouring island where his partner worked as a waitress. Having found her there with another man, he was seized by a fit of jealous rage and fired four shots at her using a revolver which he had improperly taken from the police station's strongbox to which he had access in the course of his duties. A tourist who was in the bar at the time was seriously injured. He claimed damages for negligence against the Attorney General representing the Government of the British Virgin Islands. The claimant's primary case was that the Government was negligent in allowing the officer, who was still at the probationary stage of his career, access to firearms, but before the Privy Council he also argued that the Attorney General was vicariously liable for the officer's actions. Applying the test laid down in Lister v Hesley Hall and Dubai Aluminium v Salaam the Privy Council held that, since the officer had abandoned his post and embarked on a vendetta of his own, he was not acting in the course of his employment when he fired the shots.
  31. Bernard v Attorney General of Jamaica concerned another unlawful shooting by a police officer. Mr. Bernard was using a public telephone when he was approached by a police officer who demanded it from him so that he could use it. Mr. Bernard refused to let go and an altercation followed in the course of which the officer pulled out his service revolver and fired at him, causing him injuries. The officer subsequently arrested him for assaulting a police officer. Mr. Bernard sought to hold the Attorney General on behalf of the Crown vicariously liable for the wrongful act of the officer. Lord Steyn giving the opinion of the Board said in paragraph 18:
  32. "Lister is, however, important for a number of reasons. It emphasised clearly the intense focus required on the closeness of the connection between the tort and the individual tortfeasor's employment. It stressed the need to avoid terminological issues and to adopt a broad approach to the context of the tortious conduct and the employment. It was held that the traditional test of posing, in accordance with Salmond's well-known formula, the question whether the act is "a wrongful and unauthorised mode of doing some act authorised by the master" is not entirely apt in cases of intentional wrongs: Salmond, The Law of Torts, 1907, 83, now contained in the current edition of Salmond and Heuston, The Law of Torts, 21st ed., 1996, 443. This test may invite a negative answer, with a terminological quibble, even where there is a very close connection between the tort and the functions of the employee making it fair and just to impose vicarious liability. The correct approach is to concentrate on the relative closeness of the connection between the nature of the employment and the particular tort, and to ask whether looking at the matter in the round it is just and reasonable to hold the employers vicariously liable. In deciding this question a relevant factor is the risks to others created by an employer who entrusts duties, tasks and functions to an employee. This strand in the reasoning in Lister was perhaps best expressed by Lord Millett who observed (para 83, at 250D):
    " . . . Experience shows that in the case of boarding schools, prisons, nursing homes, old people's homes, geriatric wards, and other residential homes for the young or vulnerable, there is an inherent risk that indecent assaults on the residents will be committed by those placed in authority over them, particularly if they are in close proximity to them and occupying a position of trust."
    While the facts of Lister are very different from the circumstances of the present case, the principles enunciated in Lister are of general application to intentional torts."
  33. Later, in paragraph 19, when referring to the decision in Dubai Aluminium v Salaam, Lord Steyn noted that throughout the judgments in that case there was an emphasis on the proposition that an employer ought to be liable for a tort which can fairly be regarded as a risk reasonably incidental to the type of business he carried on. In paragraphs 26 and 27 he concluded as follows:
  34. "26. Approaching the matter in the broad way required by Lister, the constable's subsequent act in arresting the plaintiff in the hospital is explicable on the basis that the constable alleged that the plaintiff had interfered with his execution of his duties as a policeman. It is retrospectant evidence which suggests that the constable had purported to act as a policeman immediately before he shot the plaintiff.
    27. Moreover, one must consider the relevance of the risk created by the fact that the police authorities routinely permitted constables like Constable Morgan to take loaded service revolvers home, and to carry them while off duty. The social utility of allowing such a licence to off duty policemen may be a matter of debate. But the state certainly created risks of the kind to which Bingham JA made reference. It does not follow that the using of a service revolver by a policeman would without more make the police authority vicariously liable. That would be going too far. But taking into account the dominant feature of this case, viz that the constable at all material times purported to act as a policeman, the risks created by the police authorities reinforce the conclusion that vicarious liability is established."
  35. In Gravil v Carroll [2008] EWCA Civ 689, [2008] ICR 1222 the claimant was punched by a member of the opposite team in the course of a rugby match between two semi-professional clubs, sustaining injury to one of his eyes. The incident occurred during an altercation following a scrum after play had been halted. The claimant sought to hold the opponent's club vicariously liable for the assault. Having referred to the authorities, Sir Anthony Clarke M.R. giving the judgment of the court said:
  36. "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."
  37. The court held that although the first defendant's act in punching a member of the other team was committed after play had been stopped, it was so closely connected with his employment that it would be fair and just to hold the club liable. The risk of a player's punching a member of the opposing team and causing him injury was a risk reasonably incidental to the purpose for which he was employed.
  38. Finally, our attention was drawn to the case of Maga v Archbishop of Birmingham [2010] EWCA Civ 256, [2010] 1 WLR 1441. The case raised, among other issues, the question whether the archdiocese of Birmingham was vicariously liable for acts of sexual abuse committed by one of its priests. The court considered the application of Lister v Hesley Hall to the particular facts of the case before it, which of course are very different from those of the present case. In the circumstances I do not think anything is to be gained from examining the decision in detail.
  39. Mr. Terry submitted that the present case is essentially no different from that of Heasmans, a decision to which Lord Clyde referred without disapproval in Lister v Hesley Hall and which he submitted, in the words of Lord Nicholls in Dubai Aluminium v Salaam, should be treated as providing significant assistance in cases of this kind. Access to the container was provided by Renwick's employment and Mr. Belsey's decision not to gas it (of which Renwick obviously became aware) provided him with an opportunity to carry out the theft without impediment. His return to the container and his theft of the silver were acts wholly unconnected with his employment and Igrox is therefore not vicariously liable for them. He submitted, moreover, that where an employee steals or deliberately damages goods belonging to a third party, the employer is to be held vicariously liable only if he has undertaken a duty to the third party as bailee or custodian of the goods which he has delegated to the employee. In support of that proposition he relied on the passage in the judgment of Purchas L.J. in Heasmans to which I referred earlier.
  40. It is quite true that, if a person has undertaken a duty to the owner of goods which includes taking reasonable care to keep them safe and delegates to an employee the performance of some function which falls within the scope of that wider duty, he will be liable for any deliberate act or omission of the employee which results in their loss or damage. That was the decision in Morris v Martin, but, as Lord Steyn pointed out in Lister v Hesley Hall, the decision is based on wider principles which are not confined to cases involving the safe-keeping or preservation of property. The law in this area has undergone a continuous process of development and refinement as the courts have struggled to identify satisfactorily the principles on which vicarious liability is based. 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.
  41. In the present case Renwick was employed to fumigate the container and its contents and to that extent he was instructed to deal with them. For that purpose he was authorised to enter the secure compound where the container was stored and he was allowed to enter the container and thus have access to its contents. The fumigation process as a whole took about 24 hours to complete and during that time no one other than Igrox and its employees were authorised to enter the container or deal with its contents. The warning seals showing that the container was under gas should have ensured that no one attempted to enter it without protective equipment until the process was complete and the container re-sealed. In those circumstances Igrox was in a broad sense responsible for its contents during the fumigation process, a responsibility which it delegated to Mr. Belsey and Renwick and which they were employed to discharge. The position is not dissimilar to that of the television repairman discussed in Palmer on Bailment, 2nd ed., (now 3rd ed., paragraph 5-032) adopted by Lord Steyn in Lister v Hesley Hall (paragraph 19). In my view there was a sufficiently close connection between Renwick's theft of the silver and the purpose of his employment to make it fair and just that Igrox should be held vicariously liable for his actions. Moreover, in those circumstances theft by an employee from the very container which he is instructed to fumigate is in my view a risk reasonably incidental to the purpose for which he is employed.
  42. I do not think that the decision in Heasmans points to a different conclusion. It was cited by Lord Clyde in Lister v Hesley Hall as an illustration of the fact that the opportunity of being present at particular premises which enables the employee to perform the act in question does not mean that it is necessarily to be regarded as being within the scope of his employment. It thus served to emphasise the need to consider all the circumstances of the wrongful act when deciding whether the employer is to be held vicariously liable. In the light of more recent decisions I think it doubtful whether the case would now be decided in the same way. The argument that had succeeded in previous cases of sexual assault was that the tortfeasor's employment simply provided him with the opportunity to assault the boys in his care, acts that were plainly not part of what he was employed to do; and in Lister v Hesley Hall Swinton Thomas L.J. relied on Heasmans as authority for that principle. However, that argument was decisively rejected by the House of Lords in favour of a more flexible approach. The theft of office equipment which a cleaner is employed to clean is now likely to be regarded as a wrong committed in the course of his employment and it is doubtful whether other forms of misuse of the same equipment are to be viewed in a different light.
  43. For these reasons I consider that the decision below was correct and I would dismiss the appeal.
  44. Lord Justice Wilson:

  45. I agree with both judgments.
  46. Lord Justice Longmore:

  47. I agree that Heasmans v Clarity [1987] ICR 949, would, in the light of Lister v Hesley Hall, probably be decided differently today.
  48. This court regarded the facts of Heasmans as showing no more than a mere opportunity for the dishonesty to be committed; that was understandable while the Salmond test for vicarious liability (as set out by Nourse LJ at 956A (albeit unattributed to its source)) prevailed. Since Lister the proviso, which Sir John Salmond had himself added but had been overlooked in subsequent authority, has to be added to the test namely "so closely connected that it would be fair and just to impose liability".
  49. That is a difficult test to apply with any legal certainty. But the cases show that a very important element is that the employer puts the employee in the position he does as part of the employer's business. That may be in the course of an assumption of responsibility to the claimant (as suggested by Lord Hobhouse in para 45 of Lister) or it may be by merely clothing the employee with the indicia of the employer's business for the purposes of carrying out that business (as in Maga v Archdiocese of Birmingham [2010] 1 WLR 1444). The claimant in the present case would succeed on either of the above bases because Igrox as fumigators did not only assume a responsibility in relation to the goods both to their contracting party (Thamesport) and to the goodsowner. They also clothed Renwick with the outward appearance of being their employee (by e.g. giving him a uniform and allowing him to take the necessary equipment to breach the seals of the container) so that no one would be suspicious if he were seen alone near the container. The closed circuit TV system showed that he was indeed around the container at the relevant time and it was only because he had the outward appearance of a Igrox employee that such a position could be allowable and understandable.
  50. An office cleaner illegitimately using telephones to make long-distance calls is a more borderline case but now that Lister has adopted Professor Palmer's example of a television repairer stealing the television as a case where vicarious liability can be imposed, I consider it impossible to view Heasman's case as being any different and that is why I would say that, if the same facts arose today, the result would probably be different.

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