Dubai Aluminium Co Ltd v Salaam [2003] IRLR 608
Mattis v Pollock [2003] IRLR 603
Until recently there was very little chance of successfully suing an employer for a deliberate assault by an employee. The law of vicarious liability only applied in respect of acts committed in the course of employment. Not surprisingly, employers were able to argue successfully that they do not employ people to assault other employees or members of the public, and therefore normally the only recourse to compensation would be a claim to the Criminal Injuries Compensation Authority.
However, the law has changed significantly and dramatically in the last three years. A line of cases of the highest authority now make it much more likely that an employer will be held responsible for assaults which occur at work.
In Fennelly v Connex Railways ([2001] IRLR 390) the Court of Appeal found the rail company liable for the actions of a ticket inspector who had assaulted a passenger. The Court said that the incident arose as a direct result of the ticket inspector performing his duties and it could not realistically be divorced from the performance of the job itself.
In 2001 the House of Lords in Lister v Hesley Hall Ltd ([2001] IRLR 472) marked a fundamental reappraisal of liability in a case involving sexual abuse by a warden at a residential school. The Court found that the actions of the warden were sufficiently connected to the work he was employed to do (monitoring children in dormitories at night), and the employers were held to be liable.
This was now been followed by another important House of Lords case, this time not involving personal injury but instead dishonesty: Dubai Aluminium Co Ltd v Salaam. The House of Lords have held that it was not necessary for there to be a duty owed by the employer to the victim in order for there to be a finding of vicarious liability. Lord Millett said that vicarious liability may arise even if the act of the employee is "an independent act in itself". He underlined that the mere fact that the employee was acting dishonestly or for his own benefit is seldom likely to be sufficient to show that an employee was not acting in the course of employment.
The effect of these lines of authority has now been highlighted graphically by the decision of the Court of Appeal in Mattis v Pollock (t/a Flamingos Nightclub).
In this case a nightclub doorman, who had become involved in an argument with a customer, was chased away from the club by a group of four or five people. The group of people gathered at the corner of the street about 100 yards away from the club. The doorman went away and returned with a knife, got hold of Mr Mattis and stabbed him in the back shouting "I'll teach you to fuck with me".
The High Court decided that the employers of the doorman were not liable. However, the Court of Appeal has reversed this saying that the stabbing represented the unfortunate culmination of the unpleasant incident that had started within the club and could not be treated in isolation from earlier events. Although the doorman's behaviour included an element of personal revenge, the Court found that at the moment that Mr Mattis was stabbed, the responsibility of the employers for the aggressive actions of the doorman had not been extinguished. One factor that influenced the Court was that they found that the club had employed the doorman knowing and approving of his aggressive tendencies. The Court of Appeal found the employers were vicariously liable for the attack on the grounds that they had authorised and expected the doorman to perform his duties in a manner which included physical manhandling of customers. The stabbing was held to be closely linked to what had gone on in the club and the employers were liable.
The employers have petitioned for permission to appeal to the House of Lords, but as the law stands at present this case and the two previous House of Lords authorities are helpful in extending the bounds of vicarious liability. The Court of Appeal found no difficulty in dismissing the arguments that the assault occurred off the premises and later on from when the argument with the customer had occurred in the club.
Furthermore, it is clear that acts of revenge on the part of employees can now be found to be the responsibility of the employer.
So where does that leave victims assaulted by an employee? The answer must be: in a far stronger position than they were few years ago, so that instead of falling back on a Criminal Injuries Compensation Authority claim, or even considering the possibility of a claim against the assailant, the employer is now a much easier target. The prospects of winning are much better, and unlike a claim against the individual assailant, the employer's liability insurers will be responsible for picking up the tab once the claim succeeds.