Blameless... but liable

Most people would agree that law should reflect morality. Where law and morality conflict, serious problems can arise. Most people would also accept that one fundamental principle of law is that the innocent should not be penalised for wrongful acts done by third parties. There will always be exceptions, in particular the vicarious liability of employers for acts of their employees.

Sexual abuse

The leading case is Lister v Hesley Hall Limited [2001] UKHL22 in which the warden of a boys' school sexually abused them. Although such action was clearly outside the course of his employment, the employer was held liable. The Court of Appeal and the House of Lords found there was sufficiently close connection between what the warden was employed to do and the abuse and held the employer liable on that basis.

Shooting in a public place

In the case of Clinton Bernard v Attorney General of Jamaica [2004] UKPC47, an off-duty policeman in plain clothes had an argument and shot someone in a public place. The Privy Council found the employer liable. The connection with his employment was that the gun had been given to him for the purposes of his duties. One has to ask the question whether, if it had been martial arts training rather than a gun which had been provided to the policeman, would the employer still be liable?

Shooting someone with whom one has had a quarrel when off duty and in a public place was hardly, on the old test, an unauthorised way of carrying out an authorised act.

Bullying in the workplace

In Majrowski v Guy's and St. Thomas's NHS Trust [2006] UKHL34, a manager bullied, harassed and intimidated the claimant. The Court of Appeal had to decide whether an employer could be held liable for the acts of an employee which amounted to a breach of a statutory duty under the Protection from Harassment Act 1997. The House of Lords held that the employer was liable for the breach of statutory duty including the Protection from Harassment Act 1997. A manager employed by the NHS Trust had bullied, harassed and intimidated Mr Majrowski; she was excessively critical of his work and time-keeping. She was rude and abusive about him before other members of staff.

Nightclub violence

Perhaps the 'high-water marks'(sic) of vicarious liability have been reached in the cases arising from the actions of doormen or bouncers physically at nightclubs.

Mattis v Pollock (trading as 'Flamingo's Nightclub') [2002] EWHC 2177 (QB), the Court of Appeal decided that a nightclub owner was liable for the actions of a bouncer employed by the nightclub in a stabbing which took place outside the club. Mattis and the bouncer had become involved in an incident; the bouncer ran home, collected a knife and 50 minutes later stabbed Mattis outside the club, severing his spinal cord and rendering him a paraplegic. The attack, it should be emphasised, did not take place on the club premises. Finding the club owner liable, the Court of Appeal decided that the bouncer had been employed to perform his duties in an 'aggressive and intimidatory manner' '“ and which bouncer is not? '“ and, possibly most importantly, that this particular bouncer was not a 'licensed bouncer' and therefore not properly trained. So don't be too surprised if an advert in the local press for a bouncer reads 'only shrinking violets need apply'.

It gets worse. Earlier this year in Hawley v Luminar Leisure Plc [2006] EWCA Civ 30, the bouncer was not even employed by the club in question but was provided by a specialist firm or agency calling itself ASE Security Services (which subsequently went into liquidation). Stretching a very thin string to breaking point, the Court of Appeal found that the bouncer in this case was a 'deemed' employee of the club or as they put it a 'temporary deemed employee'. No doubt the injuries sustained by the innocent fire fighter (David Hawley) were severe and disastrous; the club was found to be responsible for the doorman's actions.

The Evening Standard of 23 March 2007 reported the issue of a 'writ' against the Peter Stringfellow Organisation following the death of a customer outside the club, hit by a single punch from a bouncer.

Blameworthiness and liability

• School employees are not supposed to sexually abuse the children in their care.
• Policeman are not supposed to shoot members of the public with whom they have a private quarrel.
• Bouncers should not kill members of the public.

By breaking the link between blameworthiness and liability the law has moved away from generally accepted concepts of fairness and justice.

It is far from clear where this is going to end. As partners in a firm of solicitors, are we going to be liable if an assistant solicitor in the matrimonial department, having become friendly with a divorce client, sexually assaults her in her home or in his? Will we be liable if our outdoor clerk, returning from a trip to the High Court, has a road rage incident and hits someone in the street?

So the answer to the age-old question 'Am I my brother's keeper?' must be in the affirmative if your 'brother' happens to be your employee or someone who is connected with the running of your business.

The relentless march of vicarious liability will not stop until we avoid these agonisingly harsh decisions by coming clean. What we are really moving towards is the principle of 'no fault liability'.

It appears to us that irreparable damage is being done to basic legal principles and logic (if not common sense) in the quest for 'justice', and (understandable) sympathy for the victim.