Developments in the field of vicarious liability have resulted in a broadening of the definition of ‘course of employment’, which may be bad news for employers. 

At present, for an employer to be liable for the negligence of an employee, three things must be present.  First, there must be a contract of employment in place between the employer and the employee.  Second, the employee must commit a wrongful act, such as an act of negligence.  Finally, this act of negligence must be committed in the course of the employee’s employment.  It is this last criterion which has recently expanded.

Originally, an act of negligence would be considered to have been committed in the course of the employment if it was either:

(i) A wrongful act authorised by the employer; or

(ii) A wrongful and unauthorised mode of doing some act authorised by the employer.

However, there were difficulties with this approach.  In particular, it was difficult for a victim of a deliberate wrongdoing or criminal act, committed by the employee, to show that the act was an unauthorised mode of doing an authorised act.  This issue came glaringly to light in the case of Lister v Hesley Hall, in which a school unknowingly employed a paedophile as a warden.  The warden went on to abuse children at the school. 

The school argued that it was not vicariously liable for the conduct of the warden.  They claimed that, as the conduct of the warden could not be considered a wrongful act authorised by the school, or a wrongful mode of doing an act authorised by the school, the sexual abuse was not conducted in the course of the warden’s employment.

The House of Lords disagreed and, in a landmark judgment, referred to a ‘new approach’ which had emanated from a Canadian case.   In this Canadian judgment, it was held that the fundamental question when considering the issue of vicarious liability is whether the wrongful act is sufficiently related to conduct authorised by the employer to justify the imposition of vicarious liability - in other words, the ‘close connection’ test.  A non-exhaustive list of factors was also provided, which could be taken into account in determining the sufficiency of the connection between the employer’s creation of risk and the wrong complained of:

(i) The opportunity the enterprise afforded the employee to abuse their power;

(ii) The extent to which the wrongful act may have furthered the employer’s aims;

(iii) The extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise;

(iv) The extent of the power conferred on the employee in relation to the victim;

(v) The vulnerability of the potential victims to wrongful exercise of the employee’s power.

Applyng this list to the facts of the case, the House of Lords found that the school was liable for the acts of abuse committed by the warden, marking a significant broadening of potential vicarious liability claims for employers.  The repercussions of this ‘new approach’ can be seen in later cases law, such as the case of Mattis v Pollock. 

On the facts, the employee was a doorman at a club in London.  He refused the claimant entry to the club, on the instructions of his employer.  A scuffle broke out, during which the doorman was struck with a bottle.  The doorman was outnumbered and left the nightclub, going back to his flat which was nearby.  He armed himself with a knife, and returned to the scene about 15-20 minutes after the original scuffle.  He caught sight of the claimant and stabbed him in the back, severing his spinal cord and rendering him a paraplegic. 

The Court of Appeal held that the club was vicariously liable for the actions of the doorman.  Whilst the court accepted that there was an element of personal revenge involved in the doorman’s conduct, the responsibility of the doorman’s employer for his actions was not extinguished at the moment that he stabbed the claimant.  It was strongly felt that the fact that the doorman had been employed to intimidate and keep order on the doors of a club meant that there was a risk that this sort of conduct would occur, and that, now that this risk had ripened, it was the responsibility of the employer to compensate the claimant.

The facts of this case are extreme but they serve as a reminder to employers to deal with any wrongful acts committed by employees promptly, and that claims of vicarious liability may be successfully brought under an increasingly broad range of circumstances. 

For more information please contact Sophie Harper on 01206 217628 or sophie.harper@birkettlong.co.uk.