There has been a dramatic widening of recovery in vicarious liability cases since the ground-breaking decision of Lister v Hesley Hall [2001] UKHL 22. A requirement of a sufficiently close connection between the work done and the tort committed, which makes vicarious liability just and fair - or an arguably less clear notion which assesses whether a risk is reasonably incidental to the tort committed - have generated more vicarious liability claims without providing any certainty about the outer parameters of their recovery. This has been particularly true in cases of intentional torts where employees have abused positions of trust but also in cases where employees have been violent towards customers or to their co-workers.
At times, recent decisions have made employers liable for a large number of violent actions where there appeared to be a marginal connection with the employee's work. Understandably, there are sometimes irresistible pressures to find liability where a claimant's injuries are great and where there is extensive insurance coverage. However, the position in this area has never been to find automatic liability because a tort has been committed in working hours. In Lister, Lord Clyde, at [44], confirmed that an act done "during the hours of employment does not necessarily mean that it was done within the course of employment". Lord Steyn, at [24-5], distinguished between a tort closely connected to the employment and "employment furnishing a mere opportunity" to attack someone. Lord Millett, at [82], confirmed the distinction between a warden in a position of trust and an equivalent attack that might be committed by a groundsman or school porter which would not generate vicarious liability. This constituted a limiting mechanism to control employer liability. The difficulty for the courts, even though recovery has widened, continues to be the problem of identifying coherently, the line between a close enough connection and an opportunistic act.
Attacks on the public
Some of the uncertainty is due to cases such as Mattis v Pollock [2003] 1 WLR 2158, where a night club was found vicariously liable, not only for the violent attack of a night club doorman on a member of the public but in circumstances where the attack occurred off the premises and when the doorman himself, was off duty. The view of the Court of Appeal was that the close connection existed in the violence which formed part of the doorman's duties to keep order at the club. Judge LJ chose to treat an earlier altercation between the parties and the final attack as a part of a seamless sequence of events, so that the timing of the tort could be within work. This case could just as easily have been treated as opportunistic behaviour by the Court, however it should be noted that the claimant was rendered a tetraplegic and there was adequate insurance to meet the damages claim.
Violence between co-workers
Other confusing cases include Weddall v Barchester Healthcare Ltd and Wallbank v Wallbank Fox Designs [2012] EWCA Civ 25. In both these cases, which were heard together, the Court of Appeal was considering workplace violence between colleagues. In Wallbank, where vicarious liability was found, one colleague responded angrily when given an instruction by another in a factory environment. Pill LJ stated, at [54]:
"… the possibility of friction is inherent in any employment relationship but particularly one in a factory, where instant instructions and quick reactions are required. Frustrations which lead to a reaction involving some violence are predictable. The risk of an over robust reaction to an instruction is a risk created by the employment. It may be reasonably incidental to the employment."
What is confusing and uncertain about this decision is the degree to which the court now appears to be prepared to accept violence at work as being both a foreseeable and reasonably incidental response to the natural frictions of the workplace. We are told that friction is regarded as inherent in employment. Frustrations in the face of workplace instructions (whether or not in a factory) which result in "over robust" violent reactions could be seen as being in the course of employment.
This decision had potentially wide and worrying repercussions for workplace, vicarious liability claims. If spontaneous, violent reactions to workplace instructions may be in the course of employment in a factory, there is no reason in principle why they could not extend to attacks between colleagues in supermarkets, offices or other workplaces. Equally, if friction is inherent in any employment relationship, why should the claim be limited to an attack on a colleague? What if a workplace instruction comes from an irritating customer rather than a line manager? Could an "over robust" reaction which results in an attack on the customer be in the course of employment? The traditional position would have been no, but the irritable garage attendant case of Warren v Henlys [1948] All ER 700 is now over 60 years old.
Contact not sufficient
The Court of Appeal has recently had the opportunity to consider these issues in Mohamud v Morrison Supermarkets Plc [2014] EWCA Civ 116. Here, the appellant was a customer of the respondent's supermarket and petrol station. Mr Khan was an employee of the respondent and worked in the kiosk that serviced the petrol station. His duties involved running the shop, checking the pumps and offering his customers assistance. The appellant entered the kiosk and asked if there were printing facilities. Without provocation, Mr Khan verbally abused and then brutally attacked the appellant.
Was this attack in the course of employment? The appellant argued that sales staff were paid to "interact" with the public, that they wore the badge of the employer and represented his standards and that they were placed in a position where they might have to respond to a number of different and sometimes provocative enquiries. This function of interaction created the necessary closeness of connection between Khan's work and his attack which made it just and fair to find his employer vicariously liable.
At first instance and in the Court of Appeal, the judges found that there was no vicarious liability. Treacy LJ reviewed all the above cases and concluded, at [35]:
"All those cases involved a finding of liability in situations where the employee was given duties involving the clear possibility of confrontation and the use of force or was placed in a situation where an outbreak of violence was likely."
This does appear to be a rather generous view of some of the earlier cases. While nightclub doormen might sometimes be expected to apply physical force as part of their job, it does seem generous to accept that violent reactions to simple workplace instructions like those in Wallbank, involve a "clear possibility of confrontation" or amount to situations where "an outbreak of violence is likely". Choosing to interpret the cases in this light may, however, be a way of trying to circumscribe the limits of their application in future.
Frustration with colleagues or customers is a feature of working life. Occasionally, that frustration may lead to a violent reaction. The courts have sometimes found that such behaviour is closely connected to work, but Lister also requires consideration of whether it is just and fair for the employer to be held vicariously liable. This requires a balancing of the employee's duties in relation to the tort which has been committed. Would any job that required any interaction with others, whatever else it required, be enough to create the necessary close connection between work and violence? In Mohamud, Treacy LJ held that the close connection test was not satisfied here and that, at [49]:
"Our law is not yet at a stage where the mere fact of contact between a sales assistant and a customer, which is plainly authorised by the employer, is of itself sufficient to fix the employer with vicarious liability."
This caution has recently been echoed in a decision of the Scottish Inner House of the Court of Session by Lord Carloway in Vaickuviene v J Sainsbury Plc [2013] CSIH 67, where one employee harassed and finally killed a co-worker in a racially motivated attack at work. No vicarious liability was found. Lord Carloway held, at [36] & [38]:
The employee "was engaged to stack shelves in retail premises. Looking at the matter in as broad a context as possible, there is no connection between the harassment and/or murder of the deceased on the one hand and the stacking of shelves by either employee of the retail of goods to the public on the other.
"Whilst this was a particularly shocking and shameful example of xenophobic behaviour, the courts should resist any perceived need to provide a remedy merely by virtue of the sensitive nature of an individual case. As Lord Steyn said [in Bernard v Attorney General of Jamaica [2005] IRLR 398, at para 23]:"The principle of vicarious liability is not infinitely extendable."
Sensible attempt
These decisions are, undoubtedly, correct and represent a sensible attempt at setting an outer boundary in these types of claims. If the necessary closeness were achieved simply by having a job which required "interaction", huge numbers of new claims would result. An employer could be vicariously liable for any attack by an employee on customers or colleagues during work and in all kinds of retail environments. An irrational reaction to a customer, perhaps motivated by racial beliefs, as in these cases is not something an employer can realistically guard against in making appointments. The line between there being a close connection, between the work and the tort committed, as opposed to there being any connection, is a fine one but it does need to be made.
Insurance coverage is not the sole factor here. Even if there is sufficient insurance to meet the costs, there is something fundamentally disturbing about accepting that violent reactions are becoming a relatively normal reaction to working life and that employers should be financially liable to meet the costs of such claims. Victims of violence should see their attackers punished and be properly compensated, but how far should vicarious liability be used as the vehicle to service this need? It is satisfying to see that the courts have begun to draw a line in these cases to make it clear that all workplace violence should not automatically generate vicarious liability claims.
Chrisoulla Pawlowska is a senior lecturer in law at the University of Greenwich
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