Vicarious Liability for Workplace Violence. Jonathan Mitchell

Transcription

1 Vicarious Liability for Workplace Violence Jonathan Mitchell

2 On Thursday 5 th February 2015 the Court of Appeal handed down its judgement in the case of Graham v Commercial Bodyworks Ltd [2015] EWCA Civ 47. Mr Graham was very badly burned when a colleague, who had been one of his best friends and who had obtained the job with the defendant employer for him, sprayed or threw thinners over him and applied a cigarette lighter. Immediately prior to this event the two men had been seen larking around daubing putty over each other. The thinners were provided for their use by the employer during the course of their work as vehicle repair technicians. The cigarette lighter belonged to another colleague and had been borrowed by the assailant immediately prior to the incident. Cases involving injury caused by employees, otherwise than during the course of their work, are surprisingly common. They always give rise to difficult questions. The court is being asked to decide which of two innocent parties should bear the loss since it is normally the case that the assailant will be a man of straw and unable to provide the victim with a remedy. The wellspring of the modern English law of vicarious liability is Lister v Hesley Hall Limited [2002] 1 AC 215 [ ]. That decision was founded upon the decisions of the Canadian Supreme Court in cases of Bazley v Curry [1999] 2 SCR 534 [ ] and Jacobi v Griffiths [1999] 2 SCR 570 [ ], which were heard by the same panel of judges at the same time. At paragraph 27 of his speech in Lister Lord Steyn said, Wherever such problems are considered in the future in the common law world these judgements will be the starting point. As in Lister the Canadian Supreme Court started with the words of Salmond in Salmond and Heuston on the Law of Torts, which is most conveniently found in the speech of Lord Clyde in Lister at paragraph 36: "A master is not responsible for a wrongful act done by his servant D unless it is done in the course of his employment. It is deemed to be so done if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised mode of doing some act authorised by the master." As regards the second of these two cases the text continues: But a master, as opposed to the employer of an independent contractor, is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes - although improper modes - of doing them. This has given rise to what has become known as the close connection test. Was that which occurred so closely connected with the enterprise which is alleged to be vicariously liable as to make it fair just and reasonable to impose liability on that enterprise? 2/5

3 Of the two Canadian decisions the leading case is that of Bazley, in which judgement was given first and from which the following principles may be derived: a) The court should confront the question whether liability should rest with the employer directly and not bury it beneath the semantics of phrases like unauthorised modes of authorised acts ; 1 b) A useful focus for inquiry is the closeness of the connection between the authorised acts and the injury suffered; 2 c) Relevant factors include power, trust and the extent to which the employment enabled or cloaked the wrong; 3 d) Policy considerations, such as deterrence and which of two innocent parties should bear the loss should also be taken into account; 4 e) The court should look at decided cases on similar facts. As Salmond and Heuston put it in the 19 th edition of their work at page 522, the principle is easy to state but difficult to apply. All that can be done is to provide illustrations on either side of the line. 5 This is the starting point for the court s determination; 6 f) Where vicarious liability is not closely and materially related to a risk introduced or enhanced by the employer, it serves no deterrent purpose, and relegates the employer to the status of an involuntary insurer ; 7 g) The inquiry is to be directed not at foreseeability of risk from the specific conduct, but at foreseeability of the broad risks incident to a whole enterprise. 8 The enterprise and employment must not only provide the locale or the bare opportunity for the employee to commit his or her wrong, it must materially enhance the risk, in the sense of significantly contributing to it, before it is fair to hold the employer vicariously liable. Consequently, the emphasis must be on the strength of the causal link between the 1 Bazley v Curry [1999] 2 SCR para Bazley v Curry [1999] 2 SCR para Bazley v Curry [1999] 2 SCR para Bazley v Curry [1999] 2 SCR para Bazley v Curry [1999] 2 SCR para Bazley v Curry [1999] 2 SCR para Bazley v Curry [1999] 2 SCR para Bazley v Curry [1999] 2 SCR para /5

4 opportunity and the wrongful act, and not blanket catch-phrases. When the opportunity is nothing more than a but-for predicate, it provides no anchor for liability. When it plays a more specific role for example, as permitting a peculiarly custody-based tort like embezzlement or child abuse the opportunity provided by the employment situation becomes much more salient ; 9 (Emphasis in the original text.) h) Once engaged in a particular business, it is fair that an employer be made to pay the generally foreseeable costs of that business. In contrast, to impose liability for costs unrelated to the risk would effectively make the employer an involuntary insurer ; 10 In Graham the defendant employer is a modest commercial vehicle service and repair centre. It conscientiously had in place proper procedures for the control and use of the thinners. It properly trained its employees. It had bound them contractually to observe the health and safety requirement imposed upon them. As a consequence of this the claims founded upon common law negligence and numerous breaches of the various statutory duties alleged failed. Counsel for the claimant comprehensively and properly pleaded the case. There was no appeal against this dismissal of this part of the case. In truth the principle battleground both at first instance and in the Court of Appeal was the issue of the vicarious liability of the employer for the assault, which occurred. Notwithstanding the comments about deterrence and the warning of Arden LJ in Mohamud v Wm Morrison Supermarkets plc [2014] EWCA Civ 116 at para. 62, it was argued that the fact that the employer had sought via the contract of employment to bind its employees to observe the health and safety legislation provided the necessary close connection between the work and the assault. It will be seen from the Court of Appeal s judgement that this argument did not find favour. in Bazley v Curry [257] the Canadian Supreme Court identified five subsidiary factors that might assist in determining the sufficiency of the connection between the employer s creation or enhancement of the risk (the Court s emphasis) and the wrong complained of: (i) the opportunity that the enterprise afforded the employee to abuse his or her power; (ii) 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); 9 Bazley v Curry [1999] 2 SCR para Bazley v Curry [1999] 2 SCR para. 41(2). 4/5

5 (iii) the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer s enterprise; (iv) the extent of power conferred on the employee in relation to the victim; and (v) the vulnerability of potential victims to wrongful exercise of the employee s power. The Court of Appeal worked its way through these five factors and held that save for the first; the remainder were against the claimant in this case. The result is that at last the law in this area is becoming clearer. Where the work requires the employee to exercise a degree of force to discharge his obligations, or there is an element of friction inherent in the workplace, then liability will attach. However, where the assault is not born out of the work, then liability will not attach. Jonathan Mitchell February 2015 Disclaimer: The information and any commentary on the law contained in this article is provided free of charge for information purposes only. The opinions expressed are those of the writer(s) and do not necessarily represent the view of Ropewalk Chambers as a whole. Every reasonable effort is made to make the information and commentary accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by the writer(s) or by Ropewalk Chambers. The information and commentary does not, and is not intended to, amount to legal advice to any person on a specific case or matter. You are expressly advised to obtain specific, personal advice from a lawyer about your case or matter and not to rely on the information or comment contained within this article. 5/5