MATTIS V POLLOCK (trading as Flamingos Nightclub) [2003] EWCA Civ 887
FACTS:-
The Claimant was stabbed in the spine by a doorman, employed by a nightclub as a result of which he was rendered paraplegic. The doorman was later convicted of grievous bodily harm.
The doorman had begun employment at Flamingos on about the 17th July 1998 and the incident occurred on the night of the 31st July to the 1st August 1998. Contrary to regulations in force, he was not registered for this purpose by the London Borough of Greenwich and the owner of the nightclub was later convicted for employing the doorman whilst he was unlicensed.
Prior the incident in question, there had been another violent incident where the door had hurled a customer across the room. It was alleged that the owner of the nightclub had connived at that display of violence, and had actually encouraged it.
On the night of the incident in question, the nightclub owner had instructed the doorman to eject a friend of the Claimant from the club. No violence was used but the Claimant said to the police afterwards that the doorman was acting on the nightclub owner’s instructions, who knew precisely how his employee was acting and did nothing to stop it or in any way discourage him. The doorman was described by the Claimant as very aggressive and intimidating. Two other employees of the nightclub warned their employer about the doorman’s behaviour and also that he was unlicensed. The owner’s reply indicated that he wanted someone who could be relied upon to intimidate customers.
The incident in question had begun when the doorman had assaulted a friend of the Claimant’s. There had then been a fight (involving other friends of the Claimants) which resulted in the Claimant’s friends (but not including the Claimant) pursuing the doorman out of the club. They then gave up the chase and returned to the club. In the meantime, the doorman returned to his flat and obtained a knife. He approached the Claimant and his friends, all of whom except the Claimant split up and fled. He then stabbed the Claimant in the back and also slashed another man, who had given chase to him.
The Claimant sued the owner of Flamingos Nightclub on the basis that he was vicariously liable for the injuries inflicted by the doorman, and also on the basis that he owed a duty of care to the Claimant.
The trial judge held that there was not a sufficiently close connection between the employment of the doorman by the nightclub owner, and the assault on the Claimant for it to be fair and just for the nightclub owner to be vicariously liable. The Claimant appealed.
HELD:-
Lord Justice Judge referred to the cases of Lister v Hesley Hall Limited [2002] 1 AC 215 and Dubai Aluminium Co. Limited v Salaam [2002] 3 WLR 913. The essential reasoning to be derived from those cases was that the nightclub owner’s vicarious liability to the Claimant for the doorman’s attack required a deceptively simply question to be asked. Was the assault so closely connected with what the owner authorised or expected of the doorman in the performance of his employment that it would be fair and just to conclude that he was vicariously liable for the damage the Claimant sustained?
It was no answer to a claim against the employer to say that the employee was guilty of intentional wrong doing, or that he was acting exclusively for his own benefit.
Judge LJ also referred to the Canadian case of Bazley v Curry (1999) 174 DLR (4th) 45. The court in that case listed five important factors:-
Judge LJ said that the list was neither complete nor conclusive. In the Dubai Aluminium case, Lord Nicholls had said that the court had to make an evaluative judgment in each case, having regard to all the circumstances and, importantly, having regard also to the assistance provided by previous court decisions. Prior court decisions were particularly helpful.
In Bazley v Curry it was said that even where an employee behaves violently towards a fellow employee at work, the claim against the employer based on vicarious liability may nonetheless fail. Equally such liability might nevertheless be established for an assault committed outside the employer’s premises. (Vasey v Surrey Free Inn plc [1996] PIQR P373) or even when the assault takes place in the victim’s own home (Dyer v Munday [1895] 1 QB 742).
Judge LJ also referred to an article by F D Rose (1970) 40 MLR 420 in which the writer identified a number of different circumstances in which an employer escaped liability to the victim for an assault by his employee. It was clear that when an employee was expected to use violence whilst carrying out his duties, the likelihood of establishing that an act of violence fell within the broad scope of his employment was greater than it would be if he were not.
In the Lister case, Lord Millett had analysed a number of previous decisions in which it was sought to establish vicarious liability on the basis of assaults by an employee. In the case of Deatons Party Limited v Flew (1949) 79 CLR 370 a barmaid threw a glass of beer into a customer’s face, but her employer was not vicariously liable because this was not an incident to or in consequence of anything the barmaid was employed to do.
In another case, Daniels v Whetstone Entertainments Limited [1962] 2 Lloyd’s Rep 1 an employee who perpetrated an act of violence after repudiating his employer unequivocal instructions that he should return back inside the premises. Vicarious liability was not established. In this case, however the nightclub owner had actively welcomed the doorman’s aggressive attitude.
Judge LJ said that the doorman had been employed to keep order and discipline. He was encouraged and expected to perform his duties in an aggressive and intimidatory manner. Whilst this incident developed in stages, the stabbing of the Claimant 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 or distinct incident.
There was the issue of the nightclub owner’s personal liability (as opposed to vicarious liability). The trial judge had said that personal liability would not survive the reasoning, which had led him to conclude that vicarious liability would fail. Judge LJ said that he accepted the validity of that approach, adding only that personal liability would not always follow on from vicarious liability. However it did follow on in this case.
The appeal would be allowed.
FACTS:-
The Claimant was stabbed in the spine by a doorman, employed by a nightclub as a result of which he was rendered paraplegic. The doorman was later convicted of grievous bodily harm.
The doorman had begun employment at Flamingos on about the 17th July 1998 and the incident occurred on the night of the 31st July to the 1st August 1998. Contrary to regulations in force, he was not registered for this purpose by the London Borough of Greenwich and the owner of the nightclub was later convicted for employing the doorman whilst he was unlicensed.
Prior the incident in question, there had been another violent incident where the door had hurled a customer across the room. It was alleged that the owner of the nightclub had connived at that display of violence, and had actually encouraged it.
On the night of the incident in question, the nightclub owner had instructed the doorman to eject a friend of the Claimant from the club. No violence was used but the Claimant said to the police afterwards that the doorman was acting on the nightclub owner’s instructions, who knew precisely how his employee was acting and did nothing to stop it or in any way discourage him. The doorman was described by the Claimant as very aggressive and intimidating. Two other employees of the nightclub warned their employer about the doorman’s behaviour and also that he was unlicensed. The owner’s reply indicated that he wanted someone who could be relied upon to intimidate customers.
The incident in question had begun when the doorman had assaulted a friend of the Claimant’s. There had then been a fight (involving other friends of the Claimants) which resulted in the Claimant’s friends (but not including the Claimant) pursuing the doorman out of the club. They then gave up the chase and returned to the club. In the meantime, the doorman returned to his flat and obtained a knife. He approached the Claimant and his friends, all of whom except the Claimant split up and fled. He then stabbed the Claimant in the back and also slashed another man, who had given chase to him.
The Claimant sued the owner of Flamingos Nightclub on the basis that he was vicariously liable for the injuries inflicted by the doorman, and also on the basis that he owed a duty of care to the Claimant.
The trial judge held that there was not a sufficiently close connection between the employment of the doorman by the nightclub owner, and the assault on the Claimant for it to be fair and just for the nightclub owner to be vicariously liable. The Claimant appealed.
HELD:-
Lord Justice Judge referred to the cases of Lister v Hesley Hall Limited [2002] 1 AC 215 and Dubai Aluminium Co. Limited v Salaam [2002] 3 WLR 913. The essential reasoning to be derived from those cases was that the nightclub owner’s vicarious liability to the Claimant for the doorman’s attack required a deceptively simply question to be asked. Was the assault so closely connected with what the owner authorised or expected of the doorman in the performance of his employment that it would be fair and just to conclude that he was vicariously liable for the damage the Claimant sustained?
It was no answer to a claim against the employer to say that the employee was guilty of intentional wrong doing, or that he was acting exclusively for his own benefit.
Judge LJ also referred to the Canadian case of Bazley v Curry (1999) 174 DLR (4th) 45. The court in that case listed five important factors:-
- The opportunity that the enterprise afforded the employee to abuse his or her power
- 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)
- The extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise
- The extent of power conferred on the employee in relation to the victim
- The vulnerability of potential victims to wrongful exercise of the employee’s power.
Judge LJ said that the list was neither complete nor conclusive. In the Dubai Aluminium case, Lord Nicholls had said that the court had to make an evaluative judgment in each case, having regard to all the circumstances and, importantly, having regard also to the assistance provided by previous court decisions. Prior court decisions were particularly helpful.
In Bazley v Curry it was said that even where an employee behaves violently towards a fellow employee at work, the claim against the employer based on vicarious liability may nonetheless fail. Equally such liability might nevertheless be established for an assault committed outside the employer’s premises. (Vasey v Surrey Free Inn plc [1996] PIQR P373) or even when the assault takes place in the victim’s own home (Dyer v Munday [1895] 1 QB 742).
Judge LJ also referred to an article by F D Rose (1970) 40 MLR 420 in which the writer identified a number of different circumstances in which an employer escaped liability to the victim for an assault by his employee. It was clear that when an employee was expected to use violence whilst carrying out his duties, the likelihood of establishing that an act of violence fell within the broad scope of his employment was greater than it would be if he were not.
In the Lister case, Lord Millett had analysed a number of previous decisions in which it was sought to establish vicarious liability on the basis of assaults by an employee. In the case of Deatons Party Limited v Flew (1949) 79 CLR 370 a barmaid threw a glass of beer into a customer’s face, but her employer was not vicariously liable because this was not an incident to or in consequence of anything the barmaid was employed to do.
In another case, Daniels v Whetstone Entertainments Limited [1962] 2 Lloyd’s Rep 1 an employee who perpetrated an act of violence after repudiating his employer unequivocal instructions that he should return back inside the premises. Vicarious liability was not established. In this case, however the nightclub owner had actively welcomed the doorman’s aggressive attitude.
Judge LJ said that the doorman had been employed to keep order and discipline. He was encouraged and expected to perform his duties in an aggressive and intimidatory manner. Whilst this incident developed in stages, the stabbing of the Claimant 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 or distinct incident.
There was the issue of the nightclub owner’s personal liability (as opposed to vicarious liability). The trial judge had said that personal liability would not survive the reasoning, which had led him to conclude that vicarious liability would fail. Judge LJ said that he accepted the validity of that approach, adding only that personal liability would not always follow on from vicarious liability. However it did follow on in this case.
The appeal would be allowed.