Home / Insight / Vicarious liability and the perils of Christmas excess – a case for sober reflection

Vicarious liability and the perils of Christmas excess – a case for sober reflection

04/01/2013

Since the mid-19th century the courts have recognised the concept of vicarious liability; an employer would be responsible at law for the acts or omissions of their staff carried out in the scope of their employment.

With the Christmas season in full swing it is worthwhile bearing in mind that office parties and other festivities can have unfortunate consequences leaving employers facing claims which push the boundaries of vicarious liability.

Where do these boundaries lie? We thought a quick reminder would be in order…

The fundamental starting point in establishing vicarious liability is that the act has been ‘committed during the course of employment’ a concept which the courts can construe very widely.

An employer may find themselves liable for incidents which take place during an informal event organised by employees without their knowledge, input or financial assistance

Cases of this nature are therefore very fact sensitive and it is very difficult to set out fixed criteria by way of guidance as to what represents the course of employment.

For example a single episode of verbal abuse is unlikely of itself to create liability in a personal injury claim but may be one of a number of incidents which together constitute bullying or harassment sufficient to bring a claim. Has the aggrieved employee raised any previous complaints of a similar nature?

Because of the fact sensitive nature of these cases the witness evidence is a vital and alcohol is not renowned for its memory improving properties!

Witnesses should be proofed at the earliest opportunity and their evidence tested in detail to assess whether it is both coherent and credible.

Those who insure licensed premises or security organisations may be more likely to be involved in ‘incidents’ during the festive period.

Until very recently cases involving night club security staff probably determined the boundary of what constitutes vicarious liability.

In Hawley v Luminar Leisure (2006) nightclub owners were vicariously liable for the acts of a doorman supplied by a third party under an agreement for the provision of security services. The doorman assaulted a member of the public. The club owners were considered to have control not only of what the doorman did but how he did it.

In Mattis v Pollock (2003) a bouncer employed by the defendant at the defendant’s club was involved in a violent incident in the club with a customer. Following the incident the bouncer went home collected a knife and used it to stab the claimant outside the club. The defendant knew the bouncer was unlicensed and condoned if not encouraged him to act aggressively towards customers. In the circumstances the defendant was vicariously responsible for the acts of the bouncer.

  • When faced with a case of this nature it is vital to establish who is ultimately in charge of what the doorman is doing and how he does it.
  • The relationship between the premises and the doorman needs to be explored fully. Liability can potentially attach to the owner of the premises, the organisation supplying the doorman and the doorman himself (if he is insured)
  • In cases involving alleged violence ascertain whether CCTV footage is available either from inside the premises or any local authority street cameras.
  • Has the claimant been the victim of an assault of has he simply come off second best in a fight?
  • Is the claimant also pursuing a Criminal Injuries Compensation Board claim? If so obtain details to avoid the claimant receiving ‘double recovery’.
  • Speak to the police both as potential factual witnesses and to find out what if any criminal action is being taken.
  • It should be clarified if the doorman is SIA registered (a statutory requirement under the Licensing Act 2003 which provided for the liberalisation of licensed premises opening hours).
  • Hospital accident and emergency records may give a more candid and accurate records of events than those put forward in more sober reflection.
  • Liability may attach to more than one party and you may need to look at claims for contribution.

Given the government’s stated intention to rein in the excesses of both a perceived ‘booze and compensation culture’ it was perhaps difficult to see the boundaries being extended. This may not however be an end to matters

Currently working its way through the Scottish courts is Vaickoviene v J Sainsbury Plc, a tragic case involving the apparently racially motivated murder of one member of staff by another during a shift as shelf stackers. Whilst largely pleaded around breaches of the Protection From Harassment Act (1997) if ultimately successful it represents a further widening of vicarious liability.

Author

Eric Woolley

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