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Cercato-Gouveia v Kyprianou and Another, Court of Appeal, 30 November 2001

14 December 2001
The issues

Summary Judgment whether appropriate in respect of claim involving vicarious liability on the part of an employer

The facts

The Defendant succeeded in Application for Summary Judgment against Claimant. Claimant appealed.

The Claimant was a Waiter and was sacked following an incident at work. In the course of the incident, his Manager assaulted him injuring the Claimant’s finger. He sued his employer, seeking damages for wrongful dismissal and assault. The Defendant applied for Summary Judgment in respect of the assault claim.

The decision

1. The Judge had found that it was wholly unarguable that the Manager had any authority to assault the employee and that therefore there was no prospect of the Claimant succeeding in the assault claim as against his employer on the basis of the employer’s vicarious liability.

2. A decision had been made before Lister -v- Hesley Hall Limited.

3. The employer owed the usual duty of care to the employee, which duty reposed in the Manager.

4. His duties included responsibility for discipline of staff. The assault took place within working hours and at the hotel and in the course of disciplinary action. The assault had taken place shortly after the Claimant had been dismissed and therefore the assault was part and parcel of what the Manager was employed to do.

Cases involving vicarious liability of employers were “fact-sensitive”.

It could not be said that there was no real prospect of success. There was on the face of it a close connection between the assault committed by the Manager and the Claimant’s employment. This could only be dealt with after a Trial and a full examination of the evidence.

Appeal allowed.

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