To what extent is an employer vicariously liable for the violent assaults carried out by their employees in the course of their duties?

Two very dramatic cases from the Court of Appeal have decided this question.

 

Starting Point – a case by case basis

The starting point is the older decision of Lister –v- Hesley Hall Limited [2002].  It was here that the House of Lords set out the central test to be applied in order to determine whether or not an employer was liable for the violence of their employee.  Remember we are dealing with violence at work, carried out by an employee in the pursuit of his employer’s lawful instructions.  If the employer is found to be vicariously liable then the injured party can secure damages from the employer.

In Lister the House of Lords said that for the employer to be vicariously liable there must be a “close connection” between the wrongful act and the employment.  This “close connection” has not been satisfactorily defined. The House of Lords said that it must be a “value judgment” made on a case by case basis. 

 

Two Recent Outbursts Clarify the Point Further

Thanks to two recent violent outbursts by employees, the situation is now a little clearer.  The two cases (both of which were considered at the same time by the Court of Appeal) are Weddall –v- Barchester Health Care and Wallbank –v- Fox Designs Limited. 

 

Weddall –v- Barchester Health Care

Mr Weddall was the Deputy Manager of a care home operated by Barchester Health Care Limited.  Mr Marsh was a Senior Health Assistant which was a position junior to Mr Weddall.  Mr Marsh had a conviction for assault occasioning actual bodily harm.  He had apparently undertaken a course dealing with aggression. Both Mr Marsh and Mr Weddall disliked each other.  One evening Mr Weddall was on duty and due to an absence he called on Mr Marsh to find out whether or not he was willing to fill the empty shift.  He called Mr Marsh at his home and Mr Marsh was free either to accept or to refuse the offer of a voluntary extra shift.  Unfortunately, Mr Marsh had had a bad day because of a row with his wife and that evening he was very drunk.  Due to his drunkenness he formed the impression that Mr Weddall was mocking him.  This resulted in Mr Marsh hurrying to the care home on his bicycle where he saw Mr Weddall sitting in the garden.  He physically attacked Mr Weddall, knocking him to the ground and kicking him.  Mr Marsh was sentenced to 15 months imprisonment for this assault.  Mr Weddall then brought a County Court claim against Barchester Health Care Limited for damages on the basis that they were vicariously liable for the assault.

The Court of Appeal determined that this assault was an “independent venture of Marsh’s own” and as such it was separate and distinct from Mr Marsh’s employment as a Senior Health Assistant at the care home.  The request made to Mr Marsh by Mr Weddall was no more than a pretext for an act of violence unconnected with Mr Marsh’s work as a health assistant.  The court did not consider it relevant that Mr Marsh was known by his employer to have a violent past and that from time to time he had to exercise moderate force on the patients at the home in order to restrain them (it was a home for mentally ill patients).  This factor was of no relevance to what actually happened when Mr Marsh assaulted Mr Weddall and the context was entirely different.  As such, Mr Marsh was effectively on a “frolic” of his own, unconnected with his work and as such the employer could not be vicariously liable.

Contrast this decision to the linked case of Wallbank.

 

Wallbank –v- Fox Designs Limited

Mr Wallbank was employed by Fox Designs Limited which was a small manufacturing company.  Mr Wallbank was managing director and sole shareholder.  There were four other employees in addition to Mr Wallbank and his wife, one of whom was Mr Brown who was employed in the manufacture of bed frames.  Mr Brown’s responsibility was to spray the bed frames with a powder and load them onto a conveyor belt where they were hung on hooks and passed through an oven.  Mr Brown was not conscientious in his duties and constantly had to be reminded by Mr Wallbank.  The day previous to the assault he had been reminded by Mr Wallbank to switch on the oven.  On the day of the assault Mr Brown was again behind in his tasks and there was a substantial gap, noticed by Mr Wallbank, in the number of bed frames being placed on the belt for the oven.  Mr Wallbank confronted Mr Brown, not in a particularly angry way, but he was frustrated because he had spoken to Mr Brown on this subject previously.  Mr Brown made no reply.

Mr Wallbank then walked to the end of the oven with the intention of helping Mr Brown load the bed frames onto the conveyor belt.  However, Mr Brown walked towards Mr Wallbank, placed his hand on Mr Wallbank’s face and threw him onto a table which was 12 feet away.  Mr Wallbank suffered a fracture to his lower back and was unable to move.  An ambulance had to be called and he was taken to hospital.  Unsurprisingly, Mr Brown was dismissed for gross misconduct.  He was also convicted of inflicting grievous bodily harm and ordered to pay compensation of £600.

In this case the Court of Appeal concluded that the employee, Mr Brown, had been undertaking a task central to his employment when he assaulted Mr Wallbank.  It was in the commission of this task that Mr Wallbank sought to work with Mr Brown to assist him in the more efficient execution of his duties.  In the course of doing this Mr Brown threw Mr Wallbank and caused him a serious injury.  The House of Lords found that “not only was the violence closely related to the employment in both time and space, it was a spontaneous and almost instantaneous, if irrational, response to an instruction”.  Accordingly there was a close link (in time and space) between the violence carried out by Mr Brown and his work.

 

What conclusions are to be drawn from this decision? 

 

• The first conclusion is that the Courts will still adopt a fact based approach to the question of whether or not there is a sufficient connection between what the employee is required to do and his unlawful violence.
• The key factor in Wallbank appears to be that the violent outburst on the part of Mr Marsh was spontaneous (“almost instantaneous”) and closely related to the employment in both time and space. This physical and spatial proximity seems to have been the determining factor.
• Compare that to Weddall where there was a pre existing grudge and the violent employee was at home and away from work when he received the request to go in and cover. The employee was already drunk outside of work and appears to have had time to work up a passion which was unconnected with the instruction that he had received which became a mere pretext for his underlying violent disposition.

 

Admittedly, the distinction is subtle but it does seem to be the element of spontaneity and proximity in time and space which was key to the decision to find the employer liable in Wallbank and not in Weddall.  

 

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Author: David Malamatenios
Date published: 10th February 2012

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