From: Christine Beuermann <Christine.Beuermann@utas.edu.au>
To: Phillip Morgan <phillip.morgan@york.ac.uk>
obligations@uwo.ca
Date: 14/02/2014 00:55:00 UTC
Subject: [Spam?] RE: EWCA Vicarious Liability

The confused reasoning in the case reaffirms the need to clearly distinguish between vicarious liability and strict liability for breach of a so-called non-delegable duty of care (or what I have called conferred authority strict liability).  Such confusion can be seen in the handling of the night-club cases which are arguably an example of the latter, rather than the former.

 

What I find particularly interesting is the courts attempt to distinguish Wallbank v Wallbank Fox Designs Ltd (employee throwing employer on table and breaking his back whilst employer trying to help employee correct mistake loading conveyor belt).   Treacy LJ says with respect to Wallbank:

 

The court held that the close connection test was satisfied since the possibility of friction is inherent in any employment relationship, but particularly one in a factory, where instant instructions and quick reactions are required.  The risk of an over-robust reaction to an instruction was a risk created by the employment.

 

Factually, Wallbank and  Mohamud v WM Morrison Supermarkets are very similar.  Both cases involve employees behaving badly and committing assaults for personal reasons whilst at work.  Treacy LJ seems to suggest that, for the purposes of vicarious liability,  there is a difference between an employee responding badly to an employer as opposed to a customer.  Really?   The other possibility is that Wallbank was wrongly decided.

 

Cheers

 

Christine

 

 

 

Christine Beuermann
Lecturer
Faculty of Law
University of Tasmania
christine.beuermann@utas.edu.au
Phone: 61 3 6226 7564
Fax:  61 3 6226 7623

 

 

 

 

 

 

 

From: Phillip Morgan [mailto:phillip.morgan@york.ac.uk]
Sent: Thursday, 13 February 2014 10:57 PM
To: obligations@uwo.ca
Subject: EWCA Vicarious Liability

 

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.”

 

That cases concerning the scope of the close connection test continue to trouble higher appellate courts with regular frequency is of some concern.

 

Kind regards,

 

Phillip Morgan



--

_______________________

 

 

Phillip Morgan,

 

Lecturer in Law,

 

York Law School,

The University of York,

Freboys Lane,

York,

YO10 5GD,

United  Kingdom,

 

https://www.york.ac.uk/law/staff/morgan/

https://www.york.ac.uk/law/