Dear All,

Today the Court of Appeal has handed down yet another decision on vicarious liability, and the application of the “close connection” test.  It concerns a brutal and unprovoked racially motivated battery committed by a Morrison’s petrol station employee against a customer.  The Court of Appeal held that vicarious liability was not present.  http://www.bailii.org/ew/cases/EWCA/Civ/2014/116.html

The key parts of the leading judgment given by Treacy LJ are as follows:

[42] “Applying those considerations to the present matter, (a); an opportunity to assault was afforded. That in itself is not sufficient, and in this instance it did not involve an abuse of power. (b); the assault did not and could not have furthered the employer's aims. The situation is different from cases discussed earlier in this judgment. (c); the assault was related to a polite approach and request by the Appellant. The situation was one in which friction, confrontation or intimacy was not, in my judgment, inherent. (d); no relevant power was conferred on the employee as regards to the customer. (e); there was no special vulnerability of the applicant in the way that might arise, for example, where a child is in the care of a warden at a home – see Lister.”

[46] “The authorities from Lister onwards make clear that very careful attention must be given to the closeness of the connection between the tort of the employee and the duties he is employed to perform viewed in the round. In my judgment, the cases cited earlier in this judgment show that the mere fact that the employment provided the opportunity, setting, time and place for the tort to occur is not necessarily sufficient. They demonstrate that some factor or feature going beyond interaction between the employee and the victim is required. The decided cases have examined the question of close connection by reference to factors such as the granting of authority, the furtherance of an employer's aims, the inherence of friction or confrontation in the employment and the additional risk of the kind of wrong occurring.”

Phillip Morgan

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