IN THE HIGH COURT OF JUSTICE. Between. Cecilyn Legall-Busby (by her Attorney and/or Agent James Legall) AND. Gail Valentine

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1 THE REPUBLIC OF TRINIDAD AND TOBAGO CV IN THE HIGH COURT OF JUSTICE Between Cecilyn Legall-Busby (by her Attorney and/or Agent James Legall) AND Gail Valentine Telecommunications Services of Trinidad and Tobago Claimant First Defendant Second Defendant BEFORE THE HONOURABLE MR. JUSTICE A. DES VIGNES Appearances: Mr. Ronald A. Singh instructed by Mr. Rudy Davidson for the Claimant Mr. Keston McQuilkin instructed by Ms. Sharlene Waterman for the Second Defendant JUDGMENT INTRODUCTION 1. The Claimant initiated this claim against (a) the First Defendant (hereinafter referred to as Ms. Valentine ) for damages for trespass and consequential loss, and (b) the Second Defendant for damages trespass and/or negligence and consequential loss arising of acts of bullying and/or harassment and/or assault by Ms. Valentine on 14 th July, Page 1 of 25

2 2. Ms. Valentine failed to file a Defence and Judgment in Default of Appearance was entered against her on 13 th December, By order dated 16 th March, 2015, the Claimant s allegations of bullying and/or harassment were struck out. Accordingly, the claim proceeded against the Second Defendant on the basis of the allegation of assault made against Ms. Valentine. 4. The Claimant alleged that on 14 th July, 2009, Ms. Valentine, in the course of employment, assaulted her on the Second Defendant s premises. The Claimant also alleged that Second Defendant was negligent in failing: (a) to provide a safe working environment; (b) to provide adequate supervision; (c) to take steps to prevent assault of workers including the Claimant when aware of previous complaints; (d) to remove and/or relocate Ms. Valentine who on previous occasions had bullied and/or harassed the Claimant; and (e) to provide a safe system of work by not protecting the Claimant who it was foreseeable may suffer stress related and/or psychiatric illness as a result of bullying and/or harassment at work. 5. Further, the Claimant alleged that: (a) on or about a week before 14 th July 2009, she indicated to the Second Defendant her concerns about supervising and/or giving instructions to Ms. Valentine; (b) prior to 14 th July 2009, the Second Defendant was well aware of the aggressive behavior of Ms. Valentine, having had previous knowledge of incidents. 6. Accordingly, the Claimant claimed against the Second Defendant: i. Damages for trespass and/or negligence and consequential loss arising out of the actions of Ms. Valentine; ii. iii. iv. A declaration that the Second Defendant is liable to indemnify Ms. Valentine in respect of any damages, interest and costs awarded to the Claimant; An order that the Second Defendant pay to the Claimant the amount awarded in the action against the Ms. Valentine and the Second Defendant; Interest; and v. Costs. 7. At the trial, the parties agreed that the trial would proceed on the issue of liability only. Thereafter, Counsel for the Second Defendant applied to strike out certain paragraphs of the Claimant s witness statement and the entire witness statement of the James Legall. Having Page 2 of 25

3 heard submissions from both sides, I struck out the entire witness statement of James Legall and struck out several paragraphs of the Claimant s witness statement. 8. The Claimant gave evidence in support of her claim and, at the close of the Claimant s case, Counsel for the Second Defendant elected not to call any evidence and to make a no-case submission. ISSUES 9. The following issues arose for determination: i. Did the Claimant establish a prima facie case that the actions of Ms. Valentine towards her amounted to an assault? If so, should the Court draw adverse inferences against the Second Defendant for failing to lead evidence in support of its Defence? ii. iii. Has the Claimant established a prima facie case that the Second Defendant is vicariously liable for the assault committed by Ms. Valentine? If so, should the Court draw adverse inferences against the Second Defendant for failing to lead evidence in support of its Defence? Has the Claimant established that the Second Defendant was negligent? DISPOSITION 10. In my opinion, this claim should be dismissed on the following grounds: (i) (ii) The Claimant has proved on a balance of probabilities that she was assaulted by Ms. Valentine. However, she has failed to establish that the Second Defendant is vicariously liable for the assault committed by Ms. Valentine since her actions were not so closely connected to the acts that she was authorized by the Second Defendant to perform so as to be said to be done during the course of her employment; and The Claimant has failed to establish that the Second Defendant was negligent in failing to (1) provide a safe work environment and/or conditions, (2) provide adequate supervision and (3) take steps to prevent assault of workers when aware of previous complaints. Page 3 of 25

4 Issue A: The actions of Ms. Valentine amounted to an assault of the Claimant and the Court ought to draw adverse inferences against the Second Defendant for failing to lead evidence in support of its Defence. Issue B: The Claimant has failed to establish a prima facie case that the Second Defendant is vicariously liable for the assault committed by Ms. Valentine and the Second Defendant has no case to answer in this regard. 11. Issues A and B will be dealt with together. The Law - Assault 12. According to Halsbury s Laws of England, assault is defined as: an intentional and overt act causing another to apprehend the infliction of immediate and unlawful force. The threat of violence exhibiting an intention to assault will give rise to liability only if there is also a present ability (or perhaps a perceived ability) to carry the threat into execution. An assault may be committed by words or gestures alone, provided they cause an apprehension of immediate and unlawful force. Thus it is an assault for one person unlawfully to advance towards another in a threatening manner and with his fist clenched, with the intention of striking the other immediately; or to point or brandish a weapon at another with the intention of using it; or to present a firearm at another with a threat of shooting; or to pursue another in a threatening manner so as to compel him to run for shelter to avoid being beaten [emphasis mine]. 13. In Skinner v the Attorney General of Trinidad and Tobago 2 Pemberton J. put it this way: An assault is the threat or use of force on another that causes that person to have a reasonable apprehension of imminent harmful or offensive contact. An assault is established once the Claimant can prove that a reasonable man, if placed in his position 1 Volume 97 (2015) at para CV at para. 25 Page 4 of 25

5 at the relevant time, might have feared that unlawful physical force was about to be applied to him. 14. Clerk and Lindsell on Torts 3 stated that threats and vile abuse, without more, do not constitute tortious assault and mere gestures, however menacing, are not actionable if it appears at the time that there is no intention to put the menace into immediate effect. 15. In CAN Pty Ltd v Chetcuti 4 the Victoria Court of Appeal ruled that a Claimant, who seeks to establish a cause of action for the tort of assault in circumstances where no physical contact or battery in fact takes place, must prove the following elements: (1) A threat by the defendant, by words or conduct, to inflict harmful or offensive contact upon the plaintiff forthwith. It is enough if the threat is to make contact to the body of the plaintiff without the plaintiff s consent or without any legal justification. (2) A subjective intention on the part of the defendant that the threat will create in the mind of the plaintiff an apprehension that the threat will be carried out forthwith. It is not necessary to prove that the defendant in fact intends to carry out the threat. (3) The threat must in fact create in the mind of the plaintiff an apprehension that the threat will be carried out forthwith. It is not necessary for the plaintiff to fear the threat, in the sense of being frightened by it. It is enough if the plaintiff apprehends that the threat will be carried out without his or her consent. (4) The apprehension in the mind of the plaintiff must be objectively reasonable. (5) The plaintiff s reasonable apprehension caused injury, loss or damage to the plaintiff. This requirement attracts the ordinary common law concept of causation by reference to commonsense and, where appropriate, consideration of normative factors such as value judgments and policy considerations. 16. The cases of Stephens v Myers 5 and Read v Coker 6 are relevant and instructive in relation to the issue of assault raised in the instant case. In Stephens, the parties were at a meeting and 3 (2010) 20 th Edition at paras [2008] 21 VR (1830) 4 C&P. 349, 172 ER (1853) 138 ER 1437 Page 5 of 25

6 engaged in angry discussions and the majority in attendance voted that the Defendant should be removed therefrom. In reply, the Defendant stated that he would rather pull the Claimant out of his chair than be removed from the meeting and immediately advanced toward the Claimant with clenched fists. Although, the Defendant was stopped from hitting the Claimant before he was even near enough to deliver the blow, witnesses indicated that he was advancing with an intention to hit the Claimant. In light of these facts, Tindal, CJ. held that the Defendant s actions constituted an assault in law. He stated that: It is not every threat, when there is no actual personal violence, that constitutes an assault, there must, in all cases, be the means of carrying the threat into effect. The question I shall leave you will be, whether the defendant was advancing at the time, in a threatening attitude, to strike the chairman, so that his blow would almost immediately have reached the chairman, if he had not been stopt; then, though he was not near enough at the time to have struck him, yet if he was advancing with that intent, I think it amounts to assault in law. If he was so advancing, that, within a second or two, he would have reached the plaintiff, it seems to me it is an assault in law. If you think he was not advancing to strike the plaintiff, then only can you find your verdict for the defendant 17. In Read (supra) it was held, inter alia, that the actions of the Defendant and his servants amounted to an assault against the Claimant, when they surrounded him, tucked up their sleeves and aprons and threatened to break his neck if he did not leave. Jervis, CJ. stated that the facts of the case clearly showed that the Defendant was guilty of an assault as there was a threat of violence exhibiting an intention to assault, and a present ability to carry the threat into execution. 18. In Mbasogo and another v Logo Ltd and others 7 the Court of Appeal approved of Stephens (supra) and Read (supra) when it examined, inter alia, whether or not the facts pleaded were capable of amounting to the tort of assault. Sir Anthony Clarke, MR stated: 74. There was no dispute between the parties but that the tort of assault requires an overt act causing another to apprehend the infliction of immediate and unlawful force (see 7 [2006] EWCA Civ 1370 Page 6 of 25

7 eg Collins v Wilcock [1984] 3 All ER 374, 148 JP 692, [1984] 1 WLR 1172 at 1177B). There appeared, however, to be some controversy as to whether the overt act indicating that immediate intention must be coupled with the capacity to carry such an intention into immediate effect. 75. There is ample authority for the proposition that such a capacity must be proved The nineteenth century authorities Stephens v Myers (1830) 4 C & P 349; Cobbett v Grey(1849) 14 JP 56, 8 State Tr NS 1075, 4 Ex 729 at 744, and Reid v Coker (1853) 13 CB 850 at 860, 22 LJCP 201, 17 Jur 990, all establish the necessity to prove the means of carrying a threat of immediate violence into effect and no authority was cited to us which disapproves of their teaching. The Law Vicarious Liability 19. According to Halsbury s Laws of England: Vicarious liability is not strictly confined to acts done with the employer's authority but extends to acts so closely connected with acts the employee was authorised to do that, for the purpose of the liability of the employer to third parties, the wrongful conduct may fairly and properly be regarded as done in the ordinary course of the employee's employment. An employer is liable for the wrongful acts of his employee authorised by him or for wrongful modes of doing authorised acts. The liability may therefore arise where the act is one which, if lawful, would have fallen within the scope of the employee's employment as being in the discharge of his duties or the preservation of the employer's interests or property, or otherwise incidental to the purposes of his employment 20. In Lister and others v Hesley Hall Limited, 9 the House of Lords was of the view that in determining vicarious liability, a broad approach ought to be taken of the nature of the employment by asking, what was the job on which the employee was engaged for his employer. The Court held that focus should be placed on the relative closeness of the connection between the nature of the employment and the particular tort. Therein, Lord Steyn stated that: 8 Volume 97 (2010) at para (2001) UKHL 22 Page 7 of 25

8 [14] Vicarious liability is legal responsibility imposed on an employer, although he is himself free from blame, for a tort committed by his employee in the course of his employment [15] For nearly a century English judges have adopted Salmond's statement of the applicable test as correct. Salmond said that a wrongful act is deemed to be done by a "servant" in the course of his employment if "it is either (a) a wrongful act authorised by the master, or (b) a wrongful and unauthorised mode of doing some act authorised by the master": Salmond on Torts, 1st ed (1907), p 83; and Salmond and Heuston on Torts, 21st ed (1996), p 443 He said (Salmond on Torts, 1st ed, pp 83-84) that "a master... 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" 21. In Sookhai v The Attorney General of Trinidad and Tobago, 10 Moosai J. (as he then was) analysed the law of vicarious liability and stated as follows: 7. Vicarious liability is a species of strict liability. It is liability for a tort not necessarily premised on any culpable act or omission on the part of the employer; an employer is made legally answerable for the fault of his employee: Lister v. Hesley Hall Ltd. [2002] 1 AC 215 (HL) [65] Lord Millett. The theoretical underpinning of the doctrine is unclear. In Imperial Chemical Industries Ltd. v. Shatwell [1965] A C 656 (HL) 685, Lord Pearce recognised the jurisprudential basis of the doctrine as being underpinned by a combination of policy considerations when he stated: The doctrine of vicarious liability has not grown from any very clear, logical or legal principle but from social convenience and rough justice. Fleming, Law of Torts, 9th edition (1998) pp , identified these policy considerations as representing a compromise between two conflicting policies: on the one end, the social interest in furnishing an innocent tort victim with recourse against a financially responsible defendant, on the other, a hesitation to foist any undue burden on business enterprise. 10 CV Page 8 of 25

9 8. To hold otherwise would permit employers to unleash the most dangerous of characters on the citizenry without being legally responsible. That would result in, for example, the employers of a children s institution getting off scot-free for the ongoing sexual abuses committed by their employee, a convicted paedophile, in putting children to bed at nights. 9. However the doctrine must not be used as a runaway horse to impose legal responsibility on an employer for every tort committed by an employee. It is for the courts to decide, in a principled and rational way, on the articulation of general legal principles so as to lend certainty to the law. The question to be asked in all vicarious liability costs (claims) is whether, at the time the wrongful act was committed, the servant was acting within the scope of his employment. This is ultimately a question of fact and no simple test is appropriate to cover all cases: Clayton and Tomlinson, Civil Actions against the Police, 3rd Edn. (2004) 10. In Bazley v Curry (1999) 174 DLR (4th), a decision of the Supreme Court of Canada, Mchachlin J remarked at p. 62: The policy purposes underlying the imposition of vicarious liability on employers are served only where the wrong is so connected with the employment that it can be said that the employer has introduced the risk of the wrong (and is thereby fairly and usefully charged with its management and minimization). The question is whether there is a connexion or nexus between the employment enterprise and that wrong that justifies imposition of vicarious liability on the employer for the wrong, in terms of fair allocation of the consequences of the risk and/or deterrence. 22. In Noel v The Attorney General of Trinidad and Tobago and Sutherland 11 Rajkumar J. examined, inter alia, whether an employer (First Defendant) was vicariously liable for the alleged assault and battery committed by one employee (Second Defendant) against another (Claimant) at the workplace. In dismissing the claim, he held that the acts alleged to have been committed by the Second Defendant could not have been committed during the course her employment as she was employed as a Messenger and was simply not authorized to perform 11 CV at paras Page 9 of 25

10 any of the duties that are even remotely connected to the acts complained of. He went on to state that her duties neither involved the preservation of order nor did it require or contemplate the use of force by her in any circumstances. 23. In Mohamud v WM Morrison Supermarket plc 12 the Court of Appeal examined whether the Respondent supermarket was vicariously liable for an assault committed by an employee, who was an assistant in a kiosk, upon the Appellant, who was a customer at the material time. On the facts of that case, the Appellant entered the kiosk and made a request to the employee who responded in an abusive fashion and proceeded to follow the Appellant to his car and physically attack him. The trial judge found that the attack was brutal and unprovoked and took place when the employee was being encouraged to return to the kiosk by his Supervisor. He held that although the employee had assaulted the customer, the employer was not vicariously liable. 24. On appeal, the Court of Appeal dismissed the appeal. In his judgment, Treacy LJ. approved the trial judge s application of a two stage test to the consideration of vicarious liability. Stage 1 was the consideration of the relationship between the primary wrongdoer and the person alleged to be liable and whether the relationship was capable of giving rise to vicarious liability. Stage 2 was whether there is a sufficiently close connection between the wrongdoing and the employment so that it would be fair and just to hold the employer vicarious liable. 25. Importantly, Treacy LJ. identified what he referred to as different approaches which represent different ways of asking and answering the key question as to the closeness of connection. He deemed these considerations as illustrative rather than exhaustive, of the focus that was required by the Court. Ultimately, he concluded that based on the facts regarding the nature of employee s job and the particular circumstance of the assault, there was no element identified in the various considerations which could bring the Appellant s case within the close connection test so as properly to enable a finding of vicarious liability. The following passages are instructive: 12 [2014] EWCA Civ 116 Page 10 of 25

11 [25] Whilst the test identified in Lister and later cases has been clearly formulated, its application, because of its generality, is less easy. As has been observed on a number of previous occasions, each case must turn on its own particular facts, and the decision will inevitably involve an element of value judgment. See for example Weddall v Barchester Healthcare Ltd [2008] EWCA Civ 689, [2008] IRLR 829 at para 60, [2008] ICR [26] The recognition that, in seeking to see whether the test is satisfied, a court will need to bring a close focus upon the facts of the case is of particular importance in this appeal [29] In considering the scope of the employment and the application of the test, a broad approach should be adopted see Lord Clyde at paras 42 and 43 of Lister. The fact that the assault took place at the employee's place of work and at a time when he was on duty is relevant, but not conclusive see para 44. Similarly the opportunity to be present at premises enabling the assault to be committed does not mean that the act is necessarily within the scope of the employment; a greater connection between the tort and the circumstances of the employment is required see para 45 [46] The authorities from Lister onwards make clear that very careful attention must be given to the closeness of the connection between the tort of the employee and the duties he is employed to perform viewed in the round. In my judgment, the cases cited earlier in this judgment show that the mere fact that the employment provided the opportunity, setting, time and place for the tort to occur is not necessarily sufficient. They demonstrate that some factor or feature going beyond interaction between the employee and the victim is required. The decided cases have examined the question of close connection by reference to factors such as the granting of authority, the furtherance of an employer's aims, the inherence of friction or confrontation in the employment and the additional risk of the kind of wrong occurring. [emphasis mine]. 26. In Graham v Commercial Bodyworks Ltd 13 the Claimant was injured by the deliberate and reckless acts of a co-worker while at work when the co-worker used a lighter in the vicinity of the Claimant, whom he had sprinkled him with a highly flammable thinning agent (which was 13 [2015] EWCA Civ 47 Page 11 of 25

12 legitimately used on the premises). The Claimant sought to obtain damages from the employers on the basis of vicarious liability for the actions of the co-worker. The trial judge dismissed the claim and the Court of Appeal dismissed the appeal. Therein, it was held that although the employer had created a risk, it was difficult to say that the creation of that risk was sufficiently closely connected with the co-worker s reckless act. In delivering the judgment of the Court of Appeal, Longmore LJ. found the principles identified by McLachlin J. in Bazey (supra) to be particularly useful and relied thereon. He stated: 13 It is the first of these cases that is particularly useful because McLachlin J considered the principles of vicarious liability, saying, at paras 41 42: 41. Reviewing the jurisprudence, and considering the policy issues involved, I conclude that in determining whether an employer is vicariously liable for an employee s unauthorized, intentional wrong in cases where precedent is inconclusive, courts should be guided by the following principles: (1) They should openly confront the question of whether liability should lie against the employer, rather than obscuring the decision beneath semantic discussions of scope of employment and mode of conduct. (2) The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability. Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer s desires. Where this is so, vicarious liability will serve the policy considerations of provision of an adequate and just remedy and deterrence. Incidental connections to the employment enterprise, like time and place (without more), will not suffice. 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. (3) In determining the sufficiency of the connection between the employer s creation or enhancement of the risk and the wrong complained of, subsidiary factors may be considered When related to intentional torts, Page 12 of 25

13 the relevant factors may include, but are not limited to, the following: (a) the opportunity that the enterprise afforded the employee to abuse his or her power; (b) 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); (c) the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer s enterprise; (d) the extent of power conferred on the employee in relation to the victim; (e) the vulnerability of potential victims to wrongful exercise of the employee s power. 27. In applying the aforementioned factors, the Court concluded that the co-worker s wrongful act did not further the employer s aims, there was no friction or confrontation inherent in the employer s enterprise, there was no question of any power conferred on the co-worker in relation to the claimant or any particular vulnerability of the claimant. It was found that the fact that the employer could be said to have vested discretion in the co-worker to use the thinning agents and that he was obliged to do so carefully by reason of his contractual obligations, carried the matter no further, since that was little different from any employeremployee relationship. It was concluded that the real cause of Claimant s injuries was his coworker s reckless conduct which could not be said to have occurred in the course of his employment. The Law No-Case Submission 28. The relevant test to be applied in circumstances where a Defendant has elected not to call any evidence is whether or not a Claimant has established his/her case by the evidence called on a balance of probabilities. A Claimant may establish his claim on a balance of probabilities by establishing no more than a weak prima facie case which may then be strengthened to the necessary standard of proof by the adverse inferences to be drawn from the Defendant's election not to call any evidence Behnam Ltd v Kythira Investments Ltd and Another, (2003) EWCA Civ 1794 Page 13 of 25

14 29. In Wisniewski v. Central Manchester Health Authority 15 the Court of Appeal held that if a party does not call a witness who is not known to be unavailable and/or who has no good reason for not attending, and if the other side has adduced some evidence on a relevant matter, then in the absence of that witness, the trial judge is entitled to draw an inference adverse to that party and to find that matter proved. Brooke LJ. set out the following principles to be considered in the context of the case: (1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action. (2) If a court is willing to draw such inferences, they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness. (3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference; in other words, there must be a case to answer on that issue. (4) If the reason for the witnesses absence or silence satisfies the court, then no such adverse inference may be drawn. If, on the other hand, there is such credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified. [emphasis mine] 30. In Benham (supra), Brown LJ stated that the principles enunciated in Wisniewski (supra) become relevant in situations where a Defendant has elected not to call evidence: "[28] It is at this stage that the relevance of the principles stated in Wisniewski becomes apparent. The judge entertaining a no case submission should in my opinion clearly recognise and bear in mind the real possibility that the defendant, were his submission to fail, might choose to call no evidence (or, indeed, call evidence which in the event proves helpful to the claimant, something in the experience of all of us) thereby entitling the court to draw adverse inferences which go to strengthen the claimant's case. Of course such 15 [1998] P.I.Q.R. Volume 7 p Page 14 of 25

15 adverse inferences can only be drawn when the claimant's own evidence itself establishes a case to answer. A case to answer, however, as the third Wisniewski principle indicates, is established by some evidence, however weak ( only a scintilla of evidence... to support the [relevant] inference as May LJ put it in one of the earlier authorities, Hughes v Liverpool City Council). [29] Obviously, the possibility of drawing adverse inferences only arises where the defendants have material evidence to give on the issue in question. But generally that will be the case and manifestly it was so in the instant case. As Mance LJ. said in para 5 of his judgment in Boyce (see para 14 above): There may be some cases, probably rare, in which nothing in the defendant's evidence could affect the view taken about the claimant's evidence or case, but this is not one of them, and care would be required in identifying them. Mance LJ. reiterated the point in para 13 of his judgment in Miller (see para 21 above). What, however, neither Boyce nor Miller specifically drew attention to is the possibility of a claimant's case being strengthened after the conclusion of his evidence, either by the defendant not calling evidence or by that evidence in the event damaging his defence. 30. The point is worth making too even in those cases where the defendant elects to call no evidence. True, as Mance LJ made plain in Miller (see para. 20 above), the only issue then is whether the claimant has established his claim on a balance of probabilities. But it must be recognised that he may have done so by establishing no more than a weak prima facie case which has then been strengthened to the necessary standard of proof by the adverse inferences to be drawn from the defendant's election. Such adverse inferences can in other words tip the balance of probabilities in the claimant's favour." [emphasis mine]. The Claimant s Evidence 31. In her Witness Statement, the Claimant stated that around 9:00 a.m. on 14 th July 2009, she met with Ms. Valentine and Chantal in a private room where she indicated that she received instructions as how to proceed with Ms. Valentine. She stated that during this conversation Ms. Valentine began breathing heavily, her body language became aggressive and she stared at the Claimant. As a result, the Claimant became scared for her personal safety and returned Page 15 of 25

16 to her office. Upon her return to her office, the Claimant subsequently met with Chantal and discussed the way forward in relation to Ms. Valentine. The Claimant then summoned Ms. Valentine to her office so that she could provide her with certain instructions. She then described what ensued: 42. After I gave the instructions to Gail, she became agitated and started to breathe heavily and open her eyes wide at me 44. At this point Gail, in a loud and argumentative tone, said to me I continued my response to Ruby and it was at this point in time that Chantal physically held on to Gail and pushed her out of the office 45 Then all of a sudden Gail came back into the office She then aggressively shouted out to me. 46. At that point I became even more afraid for my personal safety and ran to the office door and shouted for Hazel to call for security. I turned back into the office and took up the phone and frantically tried to call the Head of Department. 47. While all of this was going on, Gail was coming towards me in a threatening manner whilst using offensive language but was held back by Chantal. 48. Upon seeing this, I apprehended that Gail was going to physically harm me and I became extremely scared and/or afraid for my life and personal safety 32. Under cross-examination on what took place in the private room, the Claimant maintained that she became scared and returned to her office based on Ms. Valentine s actions. However, she admitted that Ms. Valentine did not say she was going to beat her nor did she lunge at her, threaten her verbally, hold up a clenched fist or a weapon towards her. 33. In relation to what took place in her office, the Claimant gave the following responses under cross examination: Para. 42: I don t say that she threatened me. I don t say that she showed me clenched first. I don t say that she said she would physically harm me. She did not say she was going to beat me up. She was not holding a weapon at that first instance. Gail came in and I began outlining instructions to her. She started breathing heavily and opened her eyes. She did not threaten me. She did not raise her fist or hold weapon Page 16 of 25

17 in her hand. She was about 6 feet or a little more away from me. Chantal was also present in my office. She was sitting between me and Gail There were words being said as well. Gail threatened me. I can t remember if I said that in my Witness Statement. I don t know if I said in my Witness Statement that she raised fist at me. It is possible that I did not mention Gail lunging at me at this point in time. Gail was removed by Chantal. She came back into office. I became afraid for my safety. I don t say she threatened to beat me up. I don t say that she had weapon in her hand. She did not have a weapon in her hand. I don t say that she had fist raised at me at initial stage. I say I ran to door and told Hazel to call security. She used language towards me and she had to be put out by Chantal. Para. 44: I don t say that she threatened me or raised fist towards me or that she was holding weapon and aiming it at me Para. 46: I became even more afraid and I ran to call security. I don t say that she threatened to beat me up or had her fist clenched or that she was holding a weapon. I was afraid for my personal security because of her words. I don t say that she threatened to beat me up. I called security for her. I did that because I felt threatened by her. Things were said to me. What she said to me is not in my Witness Statement. Para. 47: I don t say she used threatening language. I said offensive language. She did not threaten to beat me up. When Chantal was holding her back I don t say she had her fist clenched. I don t say she was using her hand as a weapon. Para. 48: Gail did not use threatening language. She was not holding weapon and she did not raise her fist. She lunged at me. I don t say that she lunged at me. Yet still I came to the view that she was going to physically harm me. I apprehended this because I felt threatened by her language. Her offensive language had danger in it. I said she did not use threatening language to me. I said she did not threaten me. She did not threaten to beat me up. [emphasis mine] Analysis and Findings 34. It is of critical importance to determine, firstly, whether the Claimant has discharged the evidential burden of proving that the actions of Ms. Valentine amounted to an assault against Page 17 of 25

18 her. In my opinion, the Claimant has established a prima facie case that the actions of Ms. Valentine amounted to an assault for the following reasons: i. According to the Claimant, Ms. Valentine became agitated, breathed heavily, opened her eyes widely at the Claimant, and spoke in a loud and argumentative tone before being pushed out of the Claimant s office. Upon her re-entry, Ms. Valentine shouted aggressively and used abusive language toward the Claimant and was coming towards her in a threatening manner and had to be held back. Based on this behaviour, the Claimant alleged that she feared for her personal safety and apprehended physical harm. Under cross-examination, while the Claimant admitted that Ms. Valentine did not (a) threaten her or use threatening language; (b) show her a clenched fist; (c) hold a weapon or (d) state that she would physically harm or beat her, the Claimant was unshaken that, notwithstanding this evidence, she still apprehended physical harm as she felt threatened by the First Defendant s language which was offensive and had danger in it. Under cross-examination, the Claimant also admitted that the allegation in the Statement of Case that Ms. Valentine lunged at her was unsupported by her evidence. To my mind, although the Claimant made the aforementioned admissions and did not give evidence of what was said by Ms. Valentine that had danger in it or even explained what this phrase meant or what were the certain things said to her by Ms. Valentine, she was not shaken in her testimony that she apprehended physical harm when Ms. Valentine was coming towards her whilst using offensive language. In my opinion, the fact that Ms. Valentine did not threaten her, show her a clenched fist, hold a weapon or state that she would harm or beat her, does not negate the fact, that she did advance toward her whilst using offensive language and had to be held back by a co-worker. On the Claimant s evidence these actions made her feel threatened and she experienced fear for her life and personal safety; ii. In my view, a reasonable man, placed in the position of the Claimant might have feared that unlawful physical force was about to be applied to him: Collins v Wilcock [1984] 1 WLR 1172 at p. 1177, letter A; Stephens (supra); Skinner (supra) and CAN Pty Ltd (supra); and Page 18 of 25

19 iii. While the law is clear that vile abuse alone does not constitute a tortious assault, 16 in the instant case, the offensive language used by Ms. Valentine at the material time was coupled with her advancing toward the Claimant and having to be held back or restrained by a co-worker. In my opinion, by virtue of these actions, the Claimant has proved that Ms. Valentine s actions constituted an intentional and overt act causing her to apprehend the infliction of immediate and unlawful force. 35. Accordingly, I find that the Claimant has discharged the evidential burden of proving that the actions of Ms. Valentine amounted to an assault against her. On this basis, I reject the submissions of Counsel for the Second Defendant that the Claimant has led no evidence in support of the alleged assault that the Second Defendant needs to answer. 36. In light of all of the above, I find that the Second Defendant had a case to answer in respect of the allegation of assault by Ms. Valentine. The Second Defendant filed a Defence which contended that, inter alia, the actions of Ms. Valentine did not give rise to a cause of action for assault. Although the Second Defendant filed Witness Statements in support of its Defence, it elected not to call any of its Witnesses at the trial and chose to rely on a no-case submission.. In my opinion, the Second Defendant would have been able to give this Court relevant and material evidence at the trial as to the circumstances of the incident and to support the averments made in its Defence. This would have allowed this Court to weigh any rival contentions on the facts and in applying the law and come to a conclusion based on the totality of evidence before it. 37. Having already determined that the Claimant has established a prima facie case of assault, in my opinion, there was a case for the Second Defendant to answer. Consequently, since the Second Defendant elected not to call any evidence, I am prepared to draw adverse inferences against the Second Defendant and to rely on these adverse inferences to strengthen the prima facie case established by the Claimant to the necessary standard of proof so as to tip the balance of probabilities in favour of the Claimant. Accordingly, I find that the Claimant has proved on a balance of probabilities that she was assaulted by Ms. Valentine: Benham (supra). 16 Clerk and Lindsell (supra) Page 19 of 25

20 38. On the issue of vicarious liability, I am of the opinion that the Claimant has failed to establish a prima facie case that the Second Defendant was vicariously liability for the assault committed by Ms. Valentine for the following reasons: i. The case law is clear that in coming to a conclusion as to whether or not an employer is vicariously liable for the tortious acts of its employees, the Court must consider the merits of each case and make a value judgment looking at all the circumstances in the round. While the reasoning applied in past authorities is useful, the conclusion must be based on the specific facts before the Court. It is not in dispute that at the material time the Claimant and Ms. Valentine were both in the employ of the Second Defendant in the capacity of Manager, Operator Services (Ag.) and Customer Service Representative (CSR), respectively. It is undisputed that the relationship between the Second Defendant and Ms. Valentine was that of employer to employee. The unchallenged evidence of the Claimant was that at the material time she was responsible for managing the Operator Services Department and ensuring that all of the Second Defendant s policies were adhered to by employees with that said department. She also stated that all the CSRs were required to report to whoever was in the position of Manager, Operator Services. At paragraph 7 of her Amended Statement of Case, the Claimant alleged that shortly after discussing work related issues with Ms. Valentine, she assaulted her. In her witness statement, the Claimant stated that Ms. Valentine was summoned to her office and she gave her instructions and shortly after Ms. Valentine returned to her office and assaulted her. Under cross-examination, the Claimant maintained that she gave Ms. Valentine instructions prior to the alleged assault. When cross-examined as to the instructions given to Ms. Valentine, she stated as follows: At the meeting I gave instructions to Gail. At that time I was Ag. Manager, Operator Services. Her supervisor for that shift was Ruby Lalla. Ms. Lalla had a supervisor. There were supervisors below me. There were not other supervisors in that room. Instructions to CSR s are given in writing sometimes and orally sometimes. Sometimes instructions are given by Supervisor. Instructions I gave to Gail were not given by supervisors but by Annette Bradshaw. She is a manager. She is above me in the hierarchy. The instructions relate to Gail s performance Page 20 of 25

21 of her job. That would normally be recorded on her file. My instructions were to proceed to doctor and produce a medical certificate. That would have to be recorded on personal file eventually. In accordance with practice, that would be recorded in writing eventually. I gave instructions orally. The instructions should have been given to her in writing. They were given orally first. On the evidence, Ms. Valentine s response to the instructions of the Claimant was to assault her. The Claimant has led no evidence detailing the duties of Ms. Valentine. However, I am of the view that as a Customer Service Representative (CSR) in the Operators Department, Ms. Valentine s duties would have involved interacting with other members of staff including the Claimant and carrying out the instructions of the Claimant in her capacity as Manager. I am also of the view that Ms. Valentine s duties as a CSR did not involve maintaining order or the utilization of force. Accordingly, in my opinion, Ms. Valentine s actions were outside the course of her employment as they cannot be said to be so closely connected to the acts she was authorised to do as a CSR that it would fairly and properly be regarded as done in the ordinary course of her employment; ii. I agree with the submission of the Second Defendant that the Claimant cannot simply rely on the fact that Ms. Valentine was at her job during working hours at the time of the assault to establish that her actions were in the course of her employment: Irving and Irving v The Post Office [1987] IRLR 289. In examining the closeness of the connection between the assault and Ms. Valentine s duties that she was employed to perform, the fact that the assault took place at the Second Defendant s premises during working hours when work related matters were being discussed (instructions given to Ms. Valentine by the Claimant) are relevant but not determinative or conclusive as to the grounding of vicarious liability. Additional factors which go beyond the interaction between the Claimant and Ms. Valentine should be examined, namely, the granting of authority, the furtherance of the Second Defendant s aims, the inference of friction or confrontation in the employment and the additional risk of the assault occurring: Mohamud (supra) and Bazley v Curry [1999] 174 DLR (4th ed) 45 at para 41(3). In applying those considerations to the instant matter, I am of the opinion that although the opportunity Page 21 of 25

22 iii. iv. to assault the Claimant was afforded to Ms. Valentine by virtue of their employment, the Claimant has not led any evidence that the assault did or could further the Second Defendant s aims or that the Second Defendant conferred power on Ms. Valentine to behave in the manner that she did. Further, the Claimant failed to prove that there was some friction, confrontation or intimacy inherent in Ms. Valentine s job as a CSR or moreso inherent in the Second Defendant s enterprise. There was also no evidence adduced by the Claimant that she was vulnerable to assault by Ms. Valentine. While it is appreciated that the nature of employment relationships carry an inherent risk of disagreement, contention, friction and/or confrontation, on the evidence before me, it cannot be said that the nature of Ms. Valentine s job as a CSR (expected to report to the Claimant and carry out instructions given by the Claimant as the then acting department head), carried with it the inherent risk of contention, friction and/or confrontation that would escalate beyond mere disagreements to the extent of an assault by Ms. Valentine. Therefore, I am of the opinion that the nature of the job or the business operations of the Second Defendant did not carry the risk of assault as committed by Ms. Valentine; and In support of the Claimant s case, Counsel for the Claimant relied on the authority of Weddall v Barchester Healthcare Ltd; Wallbank v Wallbank Fox Designs Ltd [2012] EWCA Civ 25 CA. Therein, the Court of Appeal heard the two cases together which addressed the issue of the vicarious liability of an employer for the violent acts (assault) of an employee against another employee. In Weddall (supra), the employer was not held to be vicariously liable for the act of its employee who left home, came back to work and assaulted his manager following a telephone request for the employee to work a night-shift. In Wallbank (supra), however, the employer was held vicariously liable when an employee was asked to do something while at work and immediately responded by throwing the manager onto a table. Pill LJ, stated: [43] The distinguishing feature of the present cases, though they are very different from each other on their facts, is the violent response to a lawful instruction. The essence of the appellants' cases is that, since employees must receive instructions and respond to them, an improper form of response, even a Page 22 of 25

23 violent one, is an act within the course of employment. A broad view is to be taken of an employee's duties and the scope of Brown's employment as a powder coater, it was submitted, included a duty to respond to instructions given to him as a powder coater. A violent response may be an improper one but it is closely connected with the employment as a powder coater. Similarly in Weddall, the violent act was a response, at the place of work, to a request to take on a voluntary shift [55] I am far from saying that every act of violence by a junior to a more senior employee, in response to an instruction at the workplace, would be an act for which the employer is vicariously liable. In the case of Wallbank, however, I am persuaded, not without hesitation, that the employer should bear vicarious liability for the spontaneous force by which the employee reacted to the instruction given to him. On the facts, this may be a step beyond what emerges from the facts of the cases cited but, applying the principles established in those cases, it is in my view a step that should be taken on the facts of this case. To my mind, this case is distinguishable from Wallbank (supra) as, on the facts therein, the possibility of friction and confrontation was apparent by virtue of the job being in a factory setting. The risk of an over-robust reaction to an instruction was a risk created by the employment in such a setting (where instant instructions and quick reactions are required): Mohamed (supra). I agree with the reasoning applied by Lord Justice Treacy in Mohamud (supra), in respect of Wallbank (supra) and other cases where the employer was held to be vicariously liable. Therein, he found that in cases like Wallbank (supra) the employees were given duties involving the clear possibility of confrontation and the use of force or were placed in situations where an outbreak of violence was likely. In my opinion, this case is distinguishable by the primary fact that the nature of Ms. Valentine s employment as a CSR was restricted to those duties related to the provision of telephone operator services for the Second Defendant. 39. In light of all of the above, I agree with Counsel for the Second Defendant that the Second Defendant has no case to answer as the Claimant has failed to prove that the Second Defendant tis vicariously liable for the assault committed by Ms. Valentine. Accordingly, The Claimant has had no reasonable prospect of success: Benham (supra). Page 23 of 25