WEDDALL V BARCHESTER HEALTHCARE LIMITED
WALLBANK V WALLBANK FOX DESIGNS LTD. [2012] EWCA Civ 25
FACTS:-
These were two linked cases. In the first case, the Claimant was the deputy manager of a care home operated by the Defendant. He was assaulted by a Senior Health Assistant at the home, who was his junior.The Claimant had called the Assistant to get him to come in to cover for another member of staff, who had gone sick. The Assistant did not react well to the call and later on he rang the home to say that he was resigning. He then launched an unprovoked attack on the Claimant, who was sitting in the garden in the front of the home. He was convicted of assault and imprisoned for 15 months.
In the second case, the Claimant was the managing director and sole shareholder of the Defendant company. He was assaulted by one of the company employees.
In the first case, the trial judge decided that the tort was plainly occasioned by the employment, but he was not acting in the course of his employment. The trial judge in the second case came to the same conclusion.
JUDGEMENT:-
Lord Justice Pill considered the submissions of the parties on the issue of vicarious liability. He also considered the following cases:-
Pill LJ said that the distinguishing feature in the present cases was the violent response to a lawful instruction. The Claimants argued that since employees must receive instructions and respond to them, an improper form of response, even a violent one, was an act within the scope of employment.
In Weddall’s case, there was an independent venture of the employee’s and distinct from his employment. The doctrine of vicarious liability had to be kept within its limits.
In Wallbank the situation was quite different. When considering the test established by the authorities, there could in the judgment of Pill LJ be no strict distinction between violence towards a third party and violence towards a fellow employee. The exercise of authority towards a third party might be a relevant consideration in third party situations such as Fennelly where the incident arose out of the passenger’s reaction to authority lawfully exercised. No strict distinction could be drawn between violence inflicted by the senior and by the junior employee.
The Defendant’s counsel argued that there was no friction or confrontation inherent in the employer’s enterprise as in Bazley or that experience had shown the risk to be inherent in the nature of the business as in Lister. There was no evidence to cast doubt upon what one would expect in a small enterprise with a small workforce.
However the circumstances in which an employer might be vicariously liable for his employee’s intentional misconduct were not closed. The violence was closely related to the employment in both time and space, as well as being spontaneous and almost instantaneous. The possibility of friction was inherent in any employment relationship, but particularly in a factory where instant instructions and quick reactions were required.
Pill LJ would dismiss the appeal in Weddall and allow the appeal in Wallbank.
Moore-Bick LJ and Aikens LJ agreed.
WALLBANK V WALLBANK FOX DESIGNS LTD. [2012] EWCA Civ 25
FACTS:-
These were two linked cases. In the first case, the Claimant was the deputy manager of a care home operated by the Defendant. He was assaulted by a Senior Health Assistant at the home, who was his junior.The Claimant had called the Assistant to get him to come in to cover for another member of staff, who had gone sick. The Assistant did not react well to the call and later on he rang the home to say that he was resigning. He then launched an unprovoked attack on the Claimant, who was sitting in the garden in the front of the home. He was convicted of assault and imprisoned for 15 months.
In the second case, the Claimant was the managing director and sole shareholder of the Defendant company. He was assaulted by one of the company employees.
In the first case, the trial judge decided that the tort was plainly occasioned by the employment, but he was not acting in the course of his employment. The trial judge in the second case came to the same conclusion.
JUDGEMENT:-
Lord Justice Pill considered the submissions of the parties on the issue of vicarious liability. He also considered the following cases:-
- Bernard v Attorney General of Jamaica [2004] UKPC 47
- Lister v Hesley Hall Ltd [2002] 1 AC 215
- Bazley v Curry [1999] 174 DLR (4th) 45
- Dubai Aluminium Co. Ltd v Salaam [2003] AC 366
- Gravil v Carroll [2008] EWCA Civ 689
- Mattis v Pollock [2003] 1 WLR 2158
- Brown v David Robinson, Sentry Service Co. Ltd [2004] UKPC 65
- Fennelly v Connex South Eastern Ltd [2001] IRLR 390
- Brink’s Global services Inc v Igrox Limited [2010] EWCA Civ 1207
- Aldred v Nacanco Limited (transcript 27 March 1987)
- Wilson v Exel UK Ltd ta/ Exel [2010] CSIH 35
- Majrowski v Guy’s and St Thomas’ NHS Trust [2005] QB 848
- Ward v Scott Railways Ltd [1998] SC 255
Pill LJ said that the distinguishing feature in the present cases was the violent response to a lawful instruction. The Claimants argued that since employees must receive instructions and respond to them, an improper form of response, even a violent one, was an act within the scope of employment.
In Weddall’s case, there was an independent venture of the employee’s and distinct from his employment. The doctrine of vicarious liability had to be kept within its limits.
In Wallbank the situation was quite different. When considering the test established by the authorities, there could in the judgment of Pill LJ be no strict distinction between violence towards a third party and violence towards a fellow employee. The exercise of authority towards a third party might be a relevant consideration in third party situations such as Fennelly where the incident arose out of the passenger’s reaction to authority lawfully exercised. No strict distinction could be drawn between violence inflicted by the senior and by the junior employee.
The Defendant’s counsel argued that there was no friction or confrontation inherent in the employer’s enterprise as in Bazley or that experience had shown the risk to be inherent in the nature of the business as in Lister. There was no evidence to cast doubt upon what one would expect in a small enterprise with a small workforce.
However the circumstances in which an employer might be vicariously liable for his employee’s intentional misconduct were not closed. The violence was closely related to the employment in both time and space, as well as being spontaneous and almost instantaneous. The possibility of friction was inherent in any employment relationship, but particularly in a factory where instant instructions and quick reactions were required.
Pill LJ would dismiss the appeal in Weddall and allow the appeal in Wallbank.
Moore-Bick LJ and Aikens LJ agreed.