England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COLCHESTER COUNTY COURT
(JUDGE BRANDT)

		Royal Courts of Justice Strand London WC2 Tuesday, 17th July 2001

Tuesday, 17th July 2001

1. LORD JUSTICE MAY: This is a renewed application for permission to appeal against the decision of his Honour Judge Brandt, sitting in the Colchester County Court, on 18th April 2001. The judge allowed an appeal from a decision of District Judge Silverwood-Cope of 13th February 2001 when she dismissed the defendant's application to strike out part of the claimant's claim. In the result, Judge Brandt gave summary judgment on this part of the claim in favour of the defendants under Rule 24.2 of the Civil Procedure Rules on the ground that it had no real prospect of success.
2. On 13th June 2001 I refused the claimant's application for permission to appeal to this court on paper. I did so on the basis that, as I then saw it, the proposed appeal would be a second appeal to which section 55 of the Access to Justice Act 1990 and rule 52.13 apply. Taking account of the fact that the judge and the district judge reached different conclusions, I did not then consider that the conditions of rule 52.13(2) were fulfilled.
3. The claimant was a waiter employed by one or other of the defendants. He was dismissed from that employment either on 17th May 1998 by the defendant's manager, Dominique Mosconi, or on 19th May 1998 by the first defendant as a result of what happened on 17th May. He claims damages for wrongful dismissal, and that part of the claim was not struck out or dismissed. He also claims against his employer damages for assault upon him by Mr. Mosconi for which he says his employers are vicariously liable.
4. A very brief summary of the applicant's pleaded case includes the following. On 17th May 1998 the claimant and another waiter were having a friendly discussion. Mr. Mosconi, the manager, intervened for no good reason. There was an altercation which resulted in Mr. Mosconi saying that the claimant need not bother to return to work the following week and that he should come along to the office to get his P45 form. They moved to the galley. The claimant apologised in an attempt to keep his job. Mr. Mosconi did not accept the apology and told the claimant to get out. The claimant asked why he was being picked on. The allegation then is that Mr. Mosconi lunged towards the claimant and went to kick him. The claimant blocked the blow with his right hand and was injured in his right little finger. There were then punches and Mr. Mosconi grabbed a kitchen knife with an 18-inch blade and threatened the claimant with it. The claimant thereupon left. The claim for damages consequent upon that incident is quite substantial. A main ingredient appears to be the consequences of a fractured right little finger.
5. The district judge found that this matter should go to trial and dismissed the defendant's application that it should not. She considered that the law may well have developed and the facts should be tested. Judge Brandt, reversing the district judge, said that he could not see how it could really possibly be said that Mr. Mosconi was acting in a scope of his employment. He did not have any kind of authority to inflict physical harm on an employee.
6. There are two essential grounds of appeal. The first is that the judge gave no proper reasons under the CPR appeal procedures for reaching the conclusion that the district judge was wrong, and that he approached the matter wrongly under the relatively new appeal procedure, including rule 52. Instead he came, it is said, to an independent conclusion of his own, and he should not have done.
7. The second ground of appeal is that the judge came to an erroneous conclusion of law on the subject of the vicarious liability of an employer for acts of employees in the circumstances of this case. Reference was originally made to a decision of this court in Fenelly v. Connex South Eastern, to which I referred when I refused permission to appeal on paper. I was not at that stage referred to the recent House of Lords decision in Lister v. Hesley Hall Ltd. (3rd May 2001). Mr. Rich has, however, now drawn this to my attention. In that case, in short the House of Lords held that the Court of Appeal decision in Trotman v. North Yorkshire County Council [1999] LGR 584 was wrongly decided, and the House of Lords held, putting it very shortly, that the question of vicarious liability depended on the extent to which there was a close connection between the wrongful act of the employee and his employment. The evidence in that case showed that the employee's torts had been so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. The case concerned sexual abuse by the warden of a school boarding house of boys in his care.
8. In the light of this decision of the House of Lords, I now consider that permission to appeal should be granted on the second ground of appeal.
9. I was strongly inclined to refuse leave on the first ground on the basis that, in substance, it is subsumed in the second. But Mr. Rich has persuaded me both that it could affect the way in which this court approaches the second ground of appeal and that he should not be prevented from arguing his first ground of appeal in addition to the second. As to the second ground of appeal, it seems to me that, in the light of the House of Lords decision in Lister, one or both of the conditions in rule 52.13(2) are fulfilled. At first blush there appears to be a strong case that the facts of the present case would support a claim based on vicarious liability. The full court may, in the light of the Lister case, consider, as did the district judge, that the matter should be tried and the facts decided before a conclusion of law is reached on the vicarious liability issue. On the other hand, the judgments in the House of Lords in the Lister case, although unanimous in the result, have varying shades of emphasis in their expression of the principle to be applied. My summary earlier in this short judgment derives from the judgment of Lord Steyn, with whom Lord Hutton agreed, as did Lord Hobhouse, at the conclusion of a substantial judgment. Lord Clyde and Lord Millett also gave substantial judgments. It may be that an eventual decision in the present case would turn on a close analysis of all the judgments including, but obviously not limited to, paragraphs 20, 28, 50, 57, 59, 60, 69, 73 and 80. I mention these paragraphs to express no inferential suggested conclusion for the present case but simply to indicate why I now consider that one or both of the conditions in rule 52.13(2) is fulfilled.
ORDER: Permission granted; costs in the appeal. (ORDER NOT PART OF APPROVED JUDGMENT)