England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT,
QUEEN'S BENCH DIVISION
His Hon Judge Richard Seymour QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		1 July 2003

Lord Justice Judge:

1. This is the judgment of the court.
2. This is an appeal by David Mattis from the decision of His Hon Judge Richard Seymour QC, dated 24 October 2002, dismissing his claim against Gerard Pollock for damages for personal injury and consequent loss sustained on 1 August 1998.
3. The essential facts are stark. At about 1.40am on 1 August 1998, Mr Mattis, a self-employed carpenter, aged 40 years, was stabbed by a doorman employed at a nightclub called Flamingos, Stephen Cranston. His spinal cord was severed at T11 level, rendering him paraplegic and devastating his life. On 26 March 1999, Cranston was convicted at Woolwich Crown Court of causing Mr Mattis grievous bodily harm with intent, contrary to s18 of the Offences Against the Person Act 1861. After a successful appeal against the sentence imposed at the Crown Court, he was ordered to serve eight years' imprisonment.
4. The claim for damages was brought, not against Cranston personally, but rather against Mr Pollock. Until January 2000, Mr Pollock owned and operated Flamingos, on Wellington Street, Woolwich, London SE18. The essential foundation for his alleged liability for the consequences of Cranston's attack on Mr Mattis was that this incident occurred when Cranston was acting as a doorman at Flamingos. Accordingly, Mr Pollock was vicariously liable for the injuries inflicted by Cranston. Liability was also said to arise for breach of the duty of care owed by him personally to Mr Mattis. After resolving a series of complicated factual issues, the judge rejected both contentions: hence this appeal.
5. Based on the judge's findings of fact, and when appropriate quoting his own words, the background, and the probable course of the incident itself, can be summarised shortly.
6. Cranston started employment as a doorman, or "door supervisor", at Flamingos on about 17 July 1998. He was so employed on the night of 31 July – 1 August. Contrary to regulations then in force, he was not registered for this purpose by the licensing authority, the London Borough of Greenwich. On 26 August 1999, Mr Pollock was convicted at Woolwich Magistrates' Court of employing Mr Cranston on or about 31 July 1998 as an unlicensed door supervisor.
7. Just after 2am on the night of 18 July, a violent incident occurred at the club, when a man called Paul Fitzgerald was a customer. Because he failed to drink up with sufficient alacrity, Cranston seized hold of another customer, Steven Priestman, a friend of Mr Fitzgerald, and hurled him across the room. Mr Pollock gave Cranston instructions by which he meant, and Cranston understood him to mean, "that an occasion should be created to impress upon Mr Fitzgerald that Mr Cranston was prepared to use physical force to ensure compliance with any instructions that he might give to Mr Fitzgerald or any of his companions". The incident involving Mr Priestman "was provoked by Mr Cranston in compliance" with that instruction. Fortunately, this incident did not escalate into something much more serious, and Mr Priestman himself did not suffer "any real injury". However, the potential for injury, or for a scene of violent disorder, was real enough, and Mr Pollock connived at Cranston's display of violence.
8. Another, and potentially more significant incident, involving Mr Mattis and a friend of his named Dean Cook, occurred at about midnight on 24 July. On Mr Pollock's instructions that he should be barred, Mr Cook was ejected from the club by Cranston. No specific violence was used towards Mr Cook or Mr Mattis. In truth, none was needed. The intimidating atmosphere was captured in Mr Mattis' witness statement, amplifying what he had said to the police in the immediate aftermath of the incident, and his evidence at trial. In his witness statement, he said:

"As I saw matters he (Cranston) was acting on Pollock's orders to remove Dean from the club, and he made it clear that he would be violent in order to carry out these instructions, if necessary. All this time Pollock was present, and he knew precisely how Cranston was acting, and he did nothing to stop it or in any way discourage him. If anything, he was tacitly encouraging Cranston to act in this way, and it obviously gave a strong impression to persons in the club as to what action they could expect if Pollock chose to remove them."

In his evidence at trial, as quoted by the judge in his judgment, Mr Mattis said:

"Dean (Cook) was in no way aggressive or threatening. The black bouncer (Cranston), on the other hand, was very aggressive and intimidating. I got the impression that he wanted to start a fight."

9. Mr Pollock was present throughout the majority of the incident involving Mr Cook, and observed how Cranston had treated him. His attitude to Cranston on this occasion, as described by Mr Mattis, was consistent with his general attitude to Cranston's behaviour with customers at the nightclub. This had attracted the attention of two of his fellow-employees, to the extent that they were prepared to take them up with Mr Pollock. One warned Mr Pollock that Cranston could be "dangerous", and pointed out that he was not licensed to act as a doorman. Another expressly described Cranston to Mr Pollock as "a bully". Mr Pollock's response indicated that he regarded Cranston's reputation as an attribute. "He wished to employ someone as a doorman who could be relied upon to intimidate customers".
10. The incident on 24 July was the "precursor" of the attack on Mr Mattis, which took place just over a week later. Mr Mattis arrived at the club at about 11.15pm on 31 July, with other friends. They were all admitted without difficulty. At about 1am, Mr Cook entered the club with another group of friends, including Paul Fitzgerald, and a man named John Loft. They were seen to enter by Mr Pollock, who raised no objection. As they moved through the door from the foyer, into the bar area, Cranston was leaning on the back of a seat in the passageway, and observed Mr Cook's arrival.
11. Cranston told Mr Cook that he was not allowed in the club. The start of the incident was not untypical. Cranston grabbed hold of Mr Cook round the neck and pulled his face close up to his own. Mr Loft was nearby and said, "Leave him alone. He has not done anything." Cranston then released Mr Cook, and turned his attention towards Mr Loft, who, with an instinct for self-preservation, made to disappear into the ladies' lavatory. Cranston pursued him, arming himself with something like a knuckle-duster, or perhaps a cosh. He struck Mr Loft on the back of the head. Mr Loft fell to the ground. Cranston then returned his attention to Mr Cook, running towards him, and striking him in the face with the weapon he had used on Mr Loft. Mr Cook also fell to the ground.
12. In the meantime, Mr Mattis, who had not seen the start of this incident, emerged from the men's lavatory just as Cranston was running towards Mr Cook. He saw the blow delivered by Cranston to Mr Cook, and grabbed Cranston round the waist for a few seconds to try, unsuccessfully, to pull him away. He then turned to help Mr Cook off the ground.
13. Cranston's behaviour provoked a "negative reaction among other persons present". A number of them gathered around Cranston, and he was struck several times. Among other things, a glass object, probably a bottle, was broken over his head. However, he managed to escape, leaving the premises at about 1.21am.
14. Cranston was followed out of the club by Mr Cook and a number of others, four or five in number, but not including Mr Mattis himself. Mr Cook, and some of those who followed him out of the club, intended to continue the revenge or punishment attack on Cranston which had started in the premises themselves. However, Cranston disappeared to his own flat, something over 500 metres away from the club. Those with Mr Cook gave the chase up fairly early and returned to the club, and eventually Mr Cook also gave it up and returned to join them near the club, meeting up on his return with Mr Mattis and other friend. They assembled close to a street corner some 100 metres from the entrance to the club, discussing what to do next. It was now between 1.36 and 1.44am. They decided to make their respective ways home.
15. In the meantime, at his own flat, Cranston armed himself with a knife and returned to the vicinity of the club, intent on revenge for the injuries inflicted on him, and what he perceived as the public humiliation of having been driven from the club. He reappeared, running towards the group, carrying the knife in his hand. The entire group, except Mr Mattis, split up and fled. Mr Mattis remained more or less where he was, taking up a defensive position, anticipating a blow. Cranston grabbed hold of him, pulled him forward, and, plainly referring to Mr Mattis' intervention a little while earlier, in defence of Mr Cook, said something like, "I'll teach you to fuck with me," and stabbed him in the upper left back. He set off in brief pursuit of others, including Mr Cook. He then ran away from the club, in the process slashing a young man, Mr Mahoney, who had had nothing whatever to do with the earlier incident, but who, on hearing something of what was happening, had, with considerable public spirit, followed Cranston, intending to assist in his apprehension.
16. After considering the authorities, the judge concluded that, at the time of the knife attack on Mr Mattis, Mr Pollock had ceased to be under any continuing duty to him. The events which culminated in the stabbing of Mr Mattis should not be treated as a single incident, which had begun in the club while Cranston was working as a doorman. Rather, "the initial incident came to an end when Mr Cranston left the club." What he described as "the entire episode" would have ended, but for, first, the decision of Mr Cook and others to chase Cranston, and, second, after Cranston had made good his escape, and reached his home, his decision to arm himself, and return to the vicinity of the club. "The lapse of time and intervening events were, in my judgment, of such a nature that it would not be right to treat the event culminating in the stabbing of Mr Mattis as one incident commencing in the club." He concluded that there "was not a sufficiently close connection between the employment of Mr Cranston by Mr Pollock and the assault on Mr Mattis for it to be fair and just for Mr Pollock to be vicariously liable to Mr Mattis for the consequences of that attack."
17. The judge also held that, even if it could be said that Mr Pollock owed a personal duty to his customers and other visitors to the club to take reasonable care about the character of those he employed as doormen, it did not extend to cover a knife attack which took place outside the course of the doorman's employment. The judge ended the relevant part of his judgment:

"While the occasion of Mr Cranston's grievance arose while he was at work as a doorman for Mr Pollock, the injuries were caused by the decision of Mr Cranston to arm himself, to set out in search of someone upon whom to wreak his revenge, and, ultimately, when he found the group of which Mr Mattis was a member, to stab the first person within his reach. In reality it is only the last of these decisions which resulted in the injury to Mr Mattis."

18. During the course of the arguments, our attention was closely focused on two recent decisions in the House of Lords in which the principles relating to vicarious liability were analysed and authoritatively decided. These are Lister v Hesley Hall Ltd [2001] UK HL 22; [2002] AC 215, and Dubai Aluminium Co Ltd v Salaam and Others [2002] UK HL 48, [2003] WLR 1913. Lister was specifically concerned with sexual abuse of children committed to his care by a warden of a boarding house attached to a school owned and managed by the defendants. Dubai Aluminium was concerned with liability of a firm for the dishonesty of one of its partners. However, the principles relating to vicarious liability in such circumstances are indistinguishable from those which apply where an employer / employee relationship is under consideration. The opinions in Dubai Aluminium were delivered shortly after the judgment in the present case was handed down. If they had been available earlier, it would probably have been unnecessary for Judge Seymour to set out extended passages from the speeches in Lister in his judgment. We do not find it necessary to repeat them.
19. The essential principle we derive from the reasoning in Lister and Dubai Aluminium is that Mr Pollock's vicarious liability to Mr Mattis for Cranston's attack requires a deceptively simple question to be answered. Approaching the matter broadly, was the assault "so closely connected" with what Mr Pollock authorised or expected of Cranston in the performance of his employment as doorman at his nightclub, that it would be fair and just to conclude that Mr Pollock is vicariously liable for the damage Mr Mattis sustained when Crantson stabbed him.
20. In answering this question, we have borne in mind the further clarification of several important features of the principles relating to vicarious liability, conveniently summarised by Lord Millett in Dubai Aluminium at paragraph 121. It is

"no answer to a claim against the employer to say that the employee was guilty of intentional wrong-doing, or that his act was not merely cautious but criminal, or that he was acting exclusively for his own benefit, or that he was acting contrary to express instructions, or that his conduct was the very negation of his employer's duty … Vicarious liability is not necessarily defeated if the employee acted for his own benefit."

Moreover, as Lord Millett explained, vicarious liability may arise even if the act of the employee is "an independent act in itself", and, at paragraph 128, he underlined that "the mere fact that he 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 his employment. Lister itself demonstrated the heresy of the proposition that an employer cannot be vicariously liable for an independent act of "self indulgence or self gratification" by his employee.

21. Mr Paul Rose QC, for the appellant, drew attention to the decision of the Supreme Court of Canada in The Children's Foundation v Basley, otherwise Basley v Curry [1999] 174 DLR (4) 45. When considering a claim against an employer based on a tort deliberately committed by an employee, a number of distinct factors may be relevant. These include:

"(a) The opportunity that the enterprise afforded the employee to abuse his or her power;

(b) 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);

(c) The extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer's enterprise;

(d) The extent of the power conferred on the employee in relation to the victim;

(e) The vulnerability of potential victims to wrongful exercise of the employee's power."

While we acknowledge the value of this guidance, and in the present context, paragraph (b) and (c) in particular, the list is not, and is expressly stated not to be either complete or conclusive. Mr Benjamin Browne QC, for the respondent, formulated a different, forensically attractive list of considerations, which, if complete, and answered as he submitted they should be, would have led to the dismissal of the appeal. Again, however, although his list too was valuable, it was incomplete, and in any event, we should not have agreed with all his suggested answers to the questions he had formulated. Mr Browne further relied on Mr Rose's concession before the judge that Mr Pollock would not have been vicariously liable to Mr Mahoney for the injury he sustained at Cranston's hands. Mr Rose withdrew that concession before us, and it would not be helpful to refer to that concession again, or to put ourselves in a position in which we had to decide whether Mr Pollock would indeed have been liable to Mr Mahoney. We simply record that in our view it was not the concession, but the withdrawal of the concession that was right.

22. Mr Browne forcefully reminded us that in Dubai Aluminium, Lord Nicholls of Birkenhead had emphasised the value of reflecting on previous reported decisions which, he suggested, provided the essential starting point when seeking to answer the question whether any specific act by an employee was sufficiently work-related to found vicarious liability. At paragraph 26, Lord Nicholls observed:

"The crucial feature or features, either producing or negativing vicarious liability, vary widely from one case or type of case to the next. Essentially the court makes an evaluative judgment in each case, having regard to all the circumstances, and, importantly, having regard also to the assistance provided by previous court decisions. In this field the latter form of assistance is particularly valuable."

23. In deference to these observations, and the careful attention paid by counsel to them, we have felt it necessary to reflect on some of the decisions which preceded Lister and Dubai Aluminium. In doing so, however, we remind ourselves that Lord Nicholls did not say that any earlier decision where the facts were similar should authoritatively decide a case where the facts were not identical. Second, it does not follow that he was approving each earlier decision, or implying that the reasoning which led to it remained equally valid after Lister and Dubai Aluminium as it had been before. Third, in the ultimate analysis, Lord Nicholls was not suggesting that the court should do more or less than evaluate the specific features of the individual case, and having done so, decide whether, as a matter of law, vicarious liability was established.
24. In reviewing some of the earlier authorities in which vicarious liability was said to arise from violent assaults committed by an employee, we do not intend to give the impression that such cases raise different issues of principle, distinct from cases where an employee's criminal behaviour takes a non-violent form. Nevertheless, this group of cases itself serves to demonstrate the fact specific nature of the enquiry. Thus, even where an employee behaves violently towards a fellow employee, while at work, that is, at his employer's premises and during working hours, the claim against the employer for vicarious liability may nevertheless fail (see Basley v Curry). Equally,such liability may nevertheless be established for an assault committed outside the employer's premises by an individual whose duties are normally expected to be performed within the premises (Vasey v Surrey Free Inns plc [1995] PIQR 373), or indeed, when the assault takes place in the victim's own home (Dyer v Munday [1895] 1QB 742, a decision of the Court of Appeal which has perhaps attracted rather less attention than it merited). These examples underline the importance of focusing on the individual circumstances of the case under consideration.
25. In an article entitled, "Liability for an Employee's Assault" (F.D.Rose, 40 Modern Law Review [1977] at 420), after considering all the relevant authorities, the writer suggested:

"Courts within the British Commonwealth have demonstrated a persistent reluctance to hold that an employee's assault has been committed within the course of his employment so as to make his employer vicariously liable for the tort."

Mr F.D. Rose identified a number of different circumstances in which an employer escaped liability to the victim for an assault by his employee. These were summarised as, and Mr Browne would seek to rely on:

"A quarrelsome drunk threatened with ejection from a bar (Griggs v Southside Hotel Co: see also Deatons PTY Ltd v Flew [1949] 79 CLR 370); a customer threatening to report a garage-man's conduct in the performance of his duties to his employers (Warren v Henlys Ltd [1948] 2 AER 935); an aggrieved customer whom he had wrongly accused of not paying his bill (Fontin v Katapodis [1962] 108 CLR 177); a patron whom he had ejected from a dance hall in the course of his employment, and whom he wrongly suspected of assaulting him during the ejection (Daniels v Whetstone Entertainments Ltd [1962] 2 Lloyd's Rep 1); a customer who became aggressive subsequently to the employee's attempt to defraud her during a car sale (K v Ritchie Motors Ltd [1972] 34 DLR (3rd) 141); and a passenger complaining of his manner during the performance of his duties as a bus conductor (Kettle Bus Co v Ahmad [1974] 1 WLR 1082). "

The writer's avowed intention was

"to call for a more liberal approach in applying the traditional tests of vicarious liability and a greater readiness to hold the employer liable for assaults arising out of circumstances connected with his servant's employment, especially where the trouble arises out of the latter's conduct in the performance of his duties."

From the authorities Mr F.D Rose drew a distinction between assaults committed by employees who were authorised to use violence in the course of their employment, and those who were not. He pointed out that the duties of some employees might involve the risk "of an assault being committed during the discharge of his duties", adding that in such a case "the character of the employee will be important". We acknowledge the validity of the distinction at the time when it was drawn, and, following the decisions in Lister and Dubai Aluminium, it is clear that where an employee is expected to use violence while carrying out his duties, the likelihood of establishing that an act of violence fell within the broad scope of his employment is greater than it would be if he were not.

26. This article was considered in Lister itself. Lord Steyn commented that "if such (non-sexual) assaults arise directly out of circumstances connected with the employment, vicarious liability may arise", and suggested that the focus of concentration should be "the relative closeness of the connection between the nature of the employment and the particular tort". These observations seem entirely consistent with the principle we have derived from Lister and Dubai Aluminium, and summarised in paragraph 18 of this judgment. In the context of Deatons Pty Ltd v Flew [1949] 79 CLR 370 and Irving v Post Office [1987] IRL 289, Lord Clyde noted that assaults resulting from "passion and resentment" or "personal spite" may fall outside vicarious liability. He did not suggest that assaults committed in such circumstances would inevitably do so.
27. In Lister Lord Millett, too, analysed a number of the previous decisions in which it was sought to establish vicarious liability on the basis of assaults by an employee. He emphasised that in Deatons Pty Ltd the assault by the barmaid who threw a glass of beer into the customer's face was not "incident to or in consequence of anything the barmaid was employed to do". He suggested that if she had been "in charge of the bar and authorised to maintain order, the result might well have been different. It would not, in my opinion, have been enough in itself to exclude the employer's liability that she had been paying off a private score of her own." He pointed out that liability was established in Dyer v Munday, a clear example where vicarious liability was established against an employer who had placed his employee in a situation "where he may be expected on occasions to have to resort to personal violence". He noted criticism of the decision in Warren v Henlys Ltd [1948] 2 AER 935, where a petrol pump attendant's employer escaped liability, although a customer was assaulted as a result of a dispute over payment, and he indicated that the better view of the decision was that the employer "was not liable because it was no part of the duties of the pump attendant to keep order". The critical feature was to concentrate attention "on the closeness of the connection between the act of the employee and the duties he is engaged to perform broadly defined". Again, our approach to the underlying principle in paragraph 18 is consistent with this observation.
28. Mr Browne attached considerable importance to the decision in Daniels v Whetstone [1962] Lloyds Rep 1. The close analogy with this case is that Allender, who perpetrated the act of violence which led to the plaintiff's injuries, was an employee in Cranston's position. However, his violent action came after he had "contumaciously" repudiated his employer's unequivocal instructions that he should return back inside the premises. Instead, he indulged in act of private retaliation. Vicarious liability was not established. In the present case, however, no such instructions were given: rather, Mr Pollock actively welcomed Cranston's aggressive attitude to his customers. We need not analyse whether the decision in Daniels would survive the clarification of principle in Dubai Aluminium, that vicarious liability could be established even when an employee was "acting contrary to express instructions".
29. In the result, neither Mr Browne nor Mr Paul Rose suggested that any previous authority was decisive. We agree, and see no advantage in analysis of any further authorities which did not specifically attract any observations in Lister. The cases to which reference has been made do, however, helpfully highlight a number of factors of relevance to the present appeal, to which we must return.
30. Cranston was indeed employed by Mr Pollock to keep order and discipline at the nightclub. That is what bouncers are employed to do. Moreover, however, he was encouraged and expected to perform his duties in an aggressive and intimidatory manner, which included physical man-handling of customers. In our judgment this aspect of the evidence was not sufficiently addressed by Judge Seymour. He suggested that the evidence went no further than a single incident of inappropriate violence (on 18 July) which would not have justified immediate dismissal. Whether, taking Cranston's behaviour as a whole, it would have been appropriate to dismiss him, is a moot point. The reality was that Mr Pollock should not have been employing Cranston at all, and certainly should not have been encouraging him to perform his duties as he did. It was not perhaps anticipated that Cranston's behaviour would be counter-productive, and that by way of self-defence, and indeed revenge, his behaviour would provoke a violent response. That is because the customers with whom he tangled were supposed to be intimidated, and to go quietly. The whole point of any physical confrontation with Mr Pollock's customers in the nightclub, whether engineered by Cranston or not, was that he should win it.
31. Judge Seymour accurately noted that the incident might have ended at a number of different stages before Mr Mattis was stabbed. Nevertheless, that did not, of itself, provide the definitive answer to the question whether Mr Pollock should be held vicariously liable for the stabbing. On the night in question Cranston and Mr Pollock both anticipated an untroubled clash with Mr Cook. The "negative reaction" from the customers meant that Cranston, rather than Mr Cook, had to flee the premises. True, there was ample time for calm reflection. True, too, Cranston's return to the scene, armed with a knife, would have ended differently if Mr Cook, Mr Mattis and the rest had already departed. In itself, however, Mr Mattis' absence from the place where the stabbing took place would not necessarily have provided any guarantee of a peaceful outcome. Cranston was still in his working hours, and if he had not found an immediate target on whom to vent his anger outside the club, it seems probable that he would have returned inside the club to ascertain whether any of his attackers were still there. If so, on the facts found here, we have little doubt that he would have been violent within the premises, as he was outside them. In any event, his return to the immediate vicinity was motivated by a need to revenge the physical injuries and public humiliation he had sustained inside the club. The incident had wholly undermined his reputation and status as the doorman Mr Pollock expected him to be. And the words he used as he stabbed Mr Mattis demonstrated that he had Mr Mattis' intervention in defence of Mr Cook in the forefront of his mind, and that his actions were directly linked to the incident which had taken place earlier in the club.
32. This incident certainly developed in stages, at each of which it might have petered out. However, in our judgment, Judge Seymour approached the question for decision too narrowly. The stabbing of Mr Mattis represented the unfortunate, and virtual culmination of the unpleasant incident which had started within the club, and could not fairly and justly be treated in isolation from earlier events, or as a separate and distinct incident. Even allowing that Cranston's behaviour included an important element of personal revenge, approaching the matter broadly, at the moment when Mr Mattis was stabbed, the responsibility of Mr Pollock for the actions of his aggressive doorman was not extinguished. Vicarious liability was therefore established. Accordingly the appeal on this ground must succeed.
33. The issue of Mr Pollock's personal, as opposed to vicarious liability, was not closely canvassed in argument. Judge Seymour's robust approach to this aspect of his decision derived from his conclusion that personal liability would not survive the reasoning which had led him to conclude that the claim based on vicarious liability must fail. In the circumstances of this case, we accept the validity of this approach, adding, however, that personal liability would not necessarily and always follow the establishment of vicarious liability. In the present case, however, it does. Mr Pollock chose to employ Cranston, knowing and approving of his aggressive tendencies, which he encouraged rather than curbed, and the assault on Mr Martin represented the culmination of an incident which began in Mr Pollock's premises and involved his customers, in which his employee behaved in the violent and aggressive manner which Mr Pollock expected of him.
34. Given the particular circumstances in which we have found that vicarious liability is established, if we had to decide the point, Mr Pollock's personal liability would also follow.
Order: Appealed allowed as per order drawn up by counsel. Leave to appeal to the House of Lords refused. (Order does not form part of the approved judgment)