Old vicarious liability rekindled


By Nathaniel Caiden

Recent case law on imposing vicarious liability seems to have suggested a wider test for vicarious liability.  The recent case law has seemingly extended the range of cases including those where the relationship is one “akin to employment”: Catholic Child Welfare Society v Various Claimants [2012] UKSC 56; [2013] 2 AC 1 and Cox v MoJ [2014] EWCA Civ 132; [2014] 3 WLR 1036

However the Court of Appeal in the judgment of Graham v Commercial Bodyworks Ltd [2015] EWCA Civ 47 (handed down in 5 February 2015) seems to have returned to the ‘older’ case law analysis of what amounts to ‘in the course of employment’ at least in respect of actual employer-employee cases.  In that case the Claimant’s case failed as the act of negligence by the co-employee was found not to have occurred in the ‘course of employment’ – the creation of the risk was “not sufficient to impose liability. The real cause of Mr Graham’s injuries was not was the no doubt frolicsome but reckless conduct of Mr Wilkinson which cannot be said to have occurred in the course of his employment.”


The facts of the case depict an unfortunate turn of events.  The Claimant had some highly flammable thining agent on his overalls, he worked with thining agents and a co-worker had sprayed some of it onto the Claimant’s overalls.  The same co-worker lit a cigarette in the vicinity of the Claimant and this caused the Claimant’s overalls to set alight leading to him sustaining serious injuries.  It was never alleged that the co-worker intended to cause any harm, and the judge at first instance rejected any argument that it was just horseplay.  The judge at first instance labelled the co-worker’s action as deliberate and “clearly reckless” about the risks he created.

Notably, however  the co-worker who was responsible for lighting the cigarette could not be found and gave no evidence  Furthermore, the Court of Appeal specifically noted that the Defendant were not accused of being negligent themselves, it was only vicarious liability that was in issue (the Court pointed out that the Defendant had clear guidelines that employees were only to use the amount of thinner for a particular job, put unusued thinner into a waste tank, put rags that had contact with thinner in a sealed unit, banned smoking within the workshop).


Analysis and Comment

The present Court of Appeal judgment is interesting in the methodical approach that Longmore LJ takes in determining the issue.  It appears that this is the same approach that practitioners should still undertake in the case of employer-employee type vicarious liability cases as opposed to potentially broader approach taken in the non-employer-employee context.  This approach is as follows:

  1. The starting point to decide if a wrongful acts was “done in the course of employment” is to consider whether it is either (i) a “wrongful act authorised by the” employer or (ii) “a wrongful and unauthorised mode of doing some act authorised by the” employer (judgment at [8]);
  2. In dealing with the “unauthorised” acts liability will attach if the act, although unauthorised is “so connected with acts which” the employee is authorised to do that they are regarded as “modes – although improper modes of doing them” (judgment at [8]);
  3. Accordingly the issue revolves around whether or not the acts are “so connected”, it is a test of proximity.  However, this “close connection” test requires evaluative judgment and regard to previous case law is of some assistance (judgment at [9]).
  4. The guidance provided in the Canadian case of Bazley v Curry 174 DLR (4th) 45, which the Court of Appeal quoted in full and relied on in large part in reaching its decision, highlights that the fundamental question in whether to impose liability is whether the “wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability”.  However, this guidance goes on to state that vicarious liability is appropriate where the “connection” is between the “creation or enhancement of a risk and the wrong that accrues from them” (judgment at a [12]-[13] and the general useful nature of the guidance according to the Court of Appeal is set out at [14]).  Further this guidance states that “In determining the sufficiency of the connection between the employer’s creation or enhancement of the risk and the wrong complained of, subsidiary factors may be considered. When related to intentional torts, the relevant facts may include, but are not limited to the following
    1. the opportunity that the enterprise afforded the employee to abuse his or her power”;
    2. the extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee)”;
    3. the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise”;
    4. the extent of power conferred on the employee in relation to the victim”;
    5. the vulnerability of potential victims to wrongful exercise of the employee’s power.”
    6. In applying the above ‘guidance factors’ at (i)-(v) it must be possible to say that the employer “significantly” increased the risk of harm “by putting the employee in his or her position and requiring him to perform the assigned tasks”.

The Court of Appeal applying the above approach to the facts before it dismissed the appeal in relation to vicarious liability.  It found that only 1 of the 5 factors (those at (i)-(v) above) were present and all other factors pointed against the imposition of liability.  Further it found that there were no useful similar cases showing liability should be imposed.  Hence it reached the conclusion at [22]

In these circumstances I do not think that the fact that the defendants can be said to have vested discretion in Mr Wilkinson to use the thinners and that he was obliged to do so carefully by reason of his contractual obligations carries the matter any further. That is little different from any employer – employee relationship. Nor do I think that the fact that the defendant could be said to have created the risk is sufficient to impose liability. The real cause of Mr Graham’s injuries was the no doubt frolicsome but reckless conduct of Mr Wilkinson which cannot be said to have occurred in the course of his employment.