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Weddall v Barchester Healthcare Ltd and Wallbank v Wallbank Fox Design Ltd, Court of Appeal, 24 January 2012

3 February 2012
The issues

Vicarious liability – assault

The facts

The Court of Appeal heard two cases in which employees were injured as a result of violence towards them by another employee. In each case, the judge at first instance decided that the employee who committed the assault was not acting in course of his employment. Both claimants appealed.

Weddall

An employer is not vicariously liable for the tort of his employee, unless the tort was committed in the course of the tortfeasor’s employment

Mr Weddall was the deputy manager of a care home operated by the defendant. People with severe mental health problems lived in the home. Mr Marsh was a senior health assistant at the home, a position junior to Mr Weddall. Mr Marsh had a conviction for assault, but had never been violent towards residents or staff. The two men did not get on, each of them disliking aspects of how the other approached the job. On the 6 September 2006 Mr Weddall was on duty and needed to find at short notice a replacement on the night shift for an employee who had called in sick. He called Mr Marsh. Mr Marsh had had a bad day and was very drunk by 6pm. He formed the view that Mr Weddall was mocking him because of his drunken state. Shortly afterwards, he rang the home saying he intended to resign. He then rode to the home on his bicycle, saw Mr Weddall in the garden at the front of the home and attacked him. The judge found that no words of any significance were spoken before the blows were struck. Mr Marsh fled the scene. He was convicted in the Crown Court and sentenced to 15 months imprisonment having pleased guilty.

Wallbank
Mr Wallbank was employed by the defendant. He was manager, director and sole shareholder. The defendant had four employees in addition to Mr Wallbank and his wife. Mr Brown was one of those employees. He was a powder coater. There was evidence that he was not a satisfactory employee in all regards and sometimes needed reminding of what should be done. On the day in question he was making use of an oven which fused a sprayed powder to metal bed frames. Mr Wallbank told Mr Brown to put more frames through because it was wasting the heat of the oven. He then walked to the other end of the oven intending to help Mr Brown load onto the belt which fed through the oven; he said to Mr Brown “come on”. Mr Brown joined Mr Wallbank at that end of the oven, placed his hand on Mr Wallbank’s face and threw him onto a table some 12 feet away, causing him to fracture his lower back. He was also convicted of a criminal offence at the Reading Crown Court.

The decision

In each case the violence was in response to a lawful instruction. The claimant’s case in essence was that since employees must receive instructions and respond to them, an improper response even a violent one, was an act in the course of employment, and one for which the defendant were vicariously liable.

As it had been said in Bernard v A-G of Jamaica by Lord Steyn vicarious liability was a principle of strict liability with the consequence that its doctrine had to be kept within clear limits. The most common circumstance, but not the only one in which the doctrine was invoked, is in terms of the relationship between an employer and employee.

An employer is not vicariously liable for the tort of his employee, unless the tort was committed in the course of the tortfeasor’s employment. Various expressions and concepts have been used to express the test and the most generalised test adopted from previous authorities was found in Gravil v Carroll “whether the tort is so closely connected with the employment, that is with what was authorised or expected of the employee, that it would be fair and just to hold the employer vicariously responsible. In answering that question, the court must take account all the circumstances of the case…looking at the matter in the round”. It was unwise to attempt to identify any one of the expression or concepts previously used whether by the Court of Appeal, the House of Lords or the Privy Council as in embodying the definitive test of when a tort committed by a tortfeesor in the course of his employment. Each formulation had to be considered in the context of the particular facts of the case in hand.

Weddell
In Weddell the violence was the employee’s response to a routine and proper request that he volunteered for a night shift. When he received the request he was at home. He rode in a drunken state to the workplace for the purpose of inflicting violence. This was an independent venture of his own, separate and distinct from his employment. He acted as the judge put it “personally for his own reason”. The instruction was no more than a pre-text for an act of violence unconnected with his work as a help assistance. He was off duty when he rung up Mr Weddall. He was still off duty when he bicycled to the care home and attacked Mr Weddall.

The appeal in Weddall was dimissed.

Wallbank
In Wallbank, a close analysis of the facts led to the conclusion that the tort committed by Mr Brown on Wallbank was done in the course of Mr Brown’s employment. He attacked Mr Wallbank as a result of the instructions given to him. Those instructions were lawfully given to him by Mr Wallbank as the superior employee. The reaction was almost immediate. The tort flowed directly from the fact that Mr Brown was given instructions by a fellow but superior employee in the course of Mr Brown’s employment. It was so closely connected with what was expected of Mr Brown, which was to carry out lawfully given instructions, that it would be fair and just to hold his employer vicariously liable.

Appealed allowed.

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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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