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Court of Appeal keeps reins on vicarious liability in assault at work cases

6 February 2012

The Court of Appeal has reviewed the law on vicarious liability in the co-joined appeals in Weddall v Barchester Healthcare Limited and Wallbank v Wallbank Fox Designs Limited where in each case an employee suffered injury at work as a result of violence by another employee.

Background

Weddall involved a health care assistant who was telephoned while off duty at home by the claimant, a deputy manager at the care home where he worked, to ask if he would perform a voluntary nightshift. He was drunk and reacted by cycling to the care home where he worked and on finding Mr Weddell, launched "an utterly unprovoked attack" on him. He was subsequently convicted and sentenced to 15 months imprisonment.

In Wallbank, the managing director of a small furniture manufacturing company had taken an employee to task for wasting fuel. Upon saying "come on", intending to assist his colleague, the employee reacted by assaulting him. He was subsequently convicted of GBH and fined.

Both cases were rejected at first instance with the judge in each case holding that the employee who inflicted the violence was not acting in the course of their employment.

Before the Court of Appeal

In their judgment, the Court of Appeal carried out a comprehensive review of the authorities on vicarious liability but was clear that it would be unwise to treat these as providing an authorative test stating that each case must be determined on its own facts.

Despite being pressed to find that the fact the assaults had taken place at the workplace as a result of matters connected to employment meant that the employer should be liable, the Court of Appeal was concerned to ensure that the concept of vicarious liability, being a principle of strict liability, should be maintained within clear limits.

The court noted that they had not previously considered the concept of vicarious liability in the context where an employee had used violence in response to an instruction properly given to him by a more senior employee. However, on the facts of the cases, the court reached different decisions in relation to each.

In Weddall, the court had no difficulty in finding the assault to be "separate and distinct" and "clearly an act outside the course of employment", "unconnected with work as a health care assistant" and so refused to find the employer vicariously liable for the assault.

Wallbank caused the court more difficulty. Their Lordships were mindful to say that an employer would not be vicariously liable for every act of violence by a junior to a more senior employee in response to instructions at work. They were however persuaded, not without hesitation, that in this case the assault was "so closely connected, in time, place and causation", being an "immediate response to instructions" given to him that it was fair and just to hold they employer vicariously liable for the assault.

Implications

There have been concerns for some time that the concept of vicarious liability was being incrementally extended by the courts however, it is reassuring that the Court of Appeal has authoritatively reasserted the need for the courts to maintain a tight reign and keep the concept within tight limits.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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