Employers' liability insurers will be very familiar with the general principles under which the courts consider whether or not an employer should be vicariously liable for the acts of its employees. Practitioners will also be aware that the courts have generally not, in recent years, actively sought to restrict the circumstances in which vicarious liability is established.
The general underlying principles for a finding of vicarious liability can be summarised as follows:
- Is there a sufficient connection between the acts of the employee and the employment?
- Is it the employment which enables an employee to be present at a particular time and place?
- Is the act sufficiently and closely connected with what the employee is authorised to do, even if it was an improper way of carrying the work out?
These principles were reviewed in two recent cases, Weddall v Barchester Healthcare Ltd and Wallbank v Wallbank Fox Design Ltd (2012), both involving an assault by one employee on another. The cases were heard together by the Court of Appeal. In both cases the judge at first instance had decided the employee who committed the assault was not acting in the course of his employment.
In Weddall, Mr Weddall was the deputy manager of the defendant care home. Another employee, Mr Marsh, was a senior health assistant, junior to Mr Weddall. Mr Marsh had a conviction for assault but had never been violent to either residents or staff, although the men were known to dislike each other. On the day of the incident, Mr Weddall telephoned Mr Marsh and asked him to cover a shift due to another's sickness. Mr Marsh, already drunk at 6pm, apparently took the view Mr Weddall was mocking him. Mr Marsh telephoned his employers and offered his resignation and then cycled to the care home, saw Mr Weddall in the garden and attacked him. Mr Marsh fled the scene and was later convicted of assault.
In Wallbank, Mr Wallbank was employed by the defendant company and was manager, director and sole shareholder. The defendant employed four employees including Mr Brown who worked as a powder coater. On the day of the assault Mr Brown was making use of an oven which fused a sprayed powder to metal bed frames. Mr Wallbank instructed Mr Brown to put some more frames through to make more efficient use of the oven and then, as he walked to the end of the belt, said "come on" to Mr Brown. Mr Brown went over and threw Mr Wallbank onto a table causing a fracture to his lower back.
In both cases the violence was a response to lawful instruction. However in Weddall, the employee received the instruction at home and he had to ride into work to commit the offence whereas in Wallbank, the offence was committed immediately after the instructions were given.
It was therefore held, on appeal, that in Weddall there was no vicarious liability for the acts of Mr Marsh as he was on an "independent venture of his own, separate and distinct from his employment". The instruction was no more than a pre-text for an act of violence unconnected with his work. He was actually off duty when the telephone call was made. In Wallbank however, it was held the employer was vicariously liable for the actions of Mr Brown. The reaction was almost immediate and in response to a lawful instruction given by a superior employee. It seems therefore both physical and temporal proximity remain determining factors.
Weddall and Wallbank are illustrative of the application of existing principles. However, in JGE v Trustees of the Portsmouth Roman Catholic Diocesan Trust (2011) EWHC 2871 (QB), the court appears to significantly broaden the circumstances in which a finding of vicarious liability can be made.
The case involved a claim brought by a child following sexual abuse by a priest. The priest had died by the time of the trial. The priest had no employment contract with the defendant and there was no wage agreement, no mechanism for the defendant to dismiss or discipline him and no mechanism by which the defendant could control the priest. Unsurprisingly therefore the defendant argued the priest could not be considered an "employee" and they could not be held vicariously liable for his wrongdoing.
The judge held that the court must look beyond the strict formalities of the relationship and "scrutinise the substance and reality of it". He took the view the defendant's appointment of the priest gave him a uniform, premises and a position of authority and so they had to take responsibility for any wrongdoing carried out by the priest. The connection between the parties was therefore made out and effectively the priest was acting as an employee. The judge considered that the lack of control by the defendant was a factor to consider but was not the deciding one. It is understood this case will be appealed to the Court of Appeal and it will be interesting to see if the court upholds such a wide application of the doctrine. It is perhaps therefore premature to suggest this case represents a worrying extension of the applicability of vicarious liability, but is a case which highlights the broad definition given to employer/employee relationships.
In XVW & YZA v a Kent grammar school, Clyde & Co acted for the successful defendant in a claim which demonstrated the limits which do apply to the doctrine of vicarious liability.
The claimants were pupils who had attended a school trip/ expedition to Belize. A local company provided accommodation to the members of the expedition party. During the early hours, an employee of the local company raped the claimants and another young woman staying in the same cabana accommodation. The claimants brought proceedings against the defendant school alleging that they were vicariously liable for the conduct of the local man, who was the son of the owner of the accommodation and might have been co-owner of the resort where the group were staying.
At trial, the court was clear that the local employee could not be described as an employee of the defendant and that his involvement with the expedition was sufficiently limited that it was not just and fair to describe him as a person for whom the defendant should be vicariously liable. The school party was continuously supervised by three experienced adults and, short of placing a guard outside each cabana occupied by the school party at the resort, there was no means by which to defeat the assault.
Key points for defendants
- Vicarious liability claims will continue to be difficult to defend
- Once the employer/employee relationship has been established, proximity (in time and place) remains the most important factor in determining whether the action was connected to the employment or a frolic of the employee's own
- Whilst 'employee' has been loosely interpreted, it may not, however, be an infinitely stretchable definition. As the doctrine of vicarious liability imposes strict liability, the principle is not infinitely extendable
- On cases involving unusual facts, the court will consider whether the nature of the relationship is such that it is just and fair to hold defendants vicariously liable for the torts of the actual perpetrator
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.