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Mattis v Pollock, Court of Appeal, 1 July 2003

8 July 2003
The issues

Vicarious liability – doorman – bouncers – assault – course of employment

The facts

The Claimant, a self-employed Carpenter aged 40, was stabbed by a doorman employed by a nightclub called Flamingos. His spinal cord was severed and the Claimant was left paraplegic. Cranston, the doorman was charged with grievous bodily harm and sentenced to 8 years imprisonment. The Claimant subsequently brought a claim for personal injuries against the employer Flamingos, owned by Mr Pollock. He alleged that the employer was vicariously liable for the doorman’s actions.

Cranston was an unlicensed door supervisor and the Defendant was convicted in the Magistrates Court of employing him. Evidence had been given before the Judge of previous violent incidents involving Cranston. In particular, there had been an incident in which the Defendant had given Cranston instructions, which Cranston understood to mean, “that an occasion should be created to impress upon a customer that Mr Cranston was prepared to use physical force to ensure compliance with any instructions that he might give”. As a consequence, a customer had been hurled across the room. Another incident had occurred when a friend of the Claimant had been ejected by Cranston in an atmosphere, which was intimidating. At that time, the Defendant Mr Pollock was present, knew how Cranston was acting, and did nothing to stop or discourage it. Mr Pollock had indicated to fellow employees of Cranston that he had wished to employ someone as a doorman “who could be relied upon to intimidate customers”.

On the night in question, the Claimant had been in the company of a friend, one Mr Cook, who was barred. He was refused entrance to the club. The friend was verbally defended by a Mr Loft. Cranston turned on Loft, who “with an instinct for self-preservation, made to disappear into the ladies lavatory”. Cranston pursued him and assaulted him. Cranston then assaulted Cook. The Claimant, emerging from the mens lavatory, saw the second assault and tried to intervene. A group gathered around Cranston and struck him several times with amongst other things, a glass bottle over his head. Cranston left the club followed by Cook and others but not the Claimant. They chased Cranston. Cranston returned to his flat and subsequently returned to the club to revenge himself. He found Mr Mattis and stabbed him in the upper left back incidentally in the process slashing a young man, Mr Mahoney, who had nothing whatsoever to do with anything.

The Judge below found that at the time of the knife attack, the employer Mr Pollock, was no longer under any continuing duty to the Claimant. The Judge found that the incidents culminating in the stabbing of Mr Mattis were not a single incident. The Claimant’s case was dismissed. The Claimant appealed.

The decision

1. The essential principle derived from Lister -v- Hesley Hall and Dubai Aluminium Company -v- Salaam was; – was the assault so closely connected with what Mr Pollock the Defendant authorised or expected of Cranston in the performance of his employment as doorman at his night club that it would be fair and just to conclude that he was vicariously liable for the injury to Mr Mattis?

2. Vicarious liability was not defeated merely because the employee at the relevant time was acting for his own benefit and might arise if the act of the employee was an independent act in itself.

3. In Lister Lord Stein had commented that the focus of concentration should be on the “relative closeness of the connection between the nature of the employment and the particular tort”.

4. Cranston was employed specifically to keep order and a discipline and was expected and encouraged to perform his duties in an aggressive and intimidatory manner. He was still in his working hours at the time of the assault. Had he not found an immediate target outside the club, he would probably have returned inside the club. His return was motivated by a need to revenge his injuries and public humiliation he had sustained inside the club which had undermined his reputation and status as the doorman, the Defendant expected him to be.

5. The stabbing of the Claimant was the culmination of the incident, which had started within the club and could not be treated in isolation from earlier events or as a separate and distinct incident. Even allowing for the important element of personal revenge, the responsibility of the Defendant for the actions of his aggressive doorman was not extinguished. Vicarious liability was established therefore. Appeal allowed.

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