England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CAMBRIDGE COUNTY COURT
HIS HONOUR JUDGE YELTON

		Royal Courts of Justice Strand, London, WC2A 2LL
		05/02/2015

Lord Justice Longmore:

Introduction

1. A horrific incident occurred on 11^th June 2009 at the defendants' bodywork repair shop in Graveley, Cambridgeshire when a friend and co-employee of Mr Paul Graham used a cigarette lighter in the vicinity of Mr Graham, whose overalls had been sprinkled with a highly inflammable thinning agent called "Gunwash". As a result the overalls went up in flames; the fire started around Mr Graham's midriff, moved quickly up to his shoulders and caused Mr Graham very considerable injury. The friend and co-employee was a Mr Peter Wilkinson who suggested a few moments after the incident that the cause of the fire was that Mr Graham had lit a cigarette but His Honour Judge Yelton held that it was, in fact, the use of a cigarette lighter by Mr Wilkinson that was the cause of Mr Graham's injuries.
2. Mr Graham has no memory of the incident. Mr Wilkinson has disappeared, cannot be traced and gave no evidence at the trial. It is not suggested that the defendants were themselves negligent. Employees were permitted to decant only the approximate amount of thinner required for whatever job was being done (usually the cleaning of panels prior to repainting) and were then required to pour unused thinner into a waste tank. There was a sealed unit for the rags which had been used for the application of thinner. Smoking was not permitted anywhere within the workshop. No similar incident had ever occurred before.
3. Nor is there any suggestion that Mr Wilkinson intended to cause any serious harm to Mr Graham. They were friends and co-employees of long standing on the same grade of employment and rate of pay. They travelled to and from the depot together and sometimes drank together outside working hours. It was Mr Wilkinson who had recommended Mr Graham to the defendants as an employee with whom he had previously worked. The judge recorded the defendants' assertion that the incident was "horseplay" but that, the judge said, was a "gross underestimate" of Mr Wilkinson's actions which were better described as "a serious assault on his then friend". The judge categorised Mr Wilkinson's actions as deliberate and "clearly reckless" about the risks he created.
4. The only question for the judge (and now for this court) is whether the defendants are vicariously liable for Mr Wilkinson's actions. The judge held that they were not so liable and there is now an appeal.

Further relevant facts

5. Just prior to the mid-morning break the defendants' bodyshop supervisor saw Mr Graham and Mr Wilkinson "mucking around, chasing each other, flicking green putty". He did not regard that as serious enough to warrant any intervention on his part.
6. Mr Chatten, another employee, gave evidence that he saw Mr Wilkinson spray something out of a container onto the back of Mr Graham's overalls. But these containers were never supposed to be used in connection with thinning agents. Mr Chatten also said that he then saw Mr Wilkinson attempt to set light to Mr Graham's overalls with a cigarette lighter. Both Mr Chatten and another employee, Mr Fett, said that Mr Wilkinson then came into the canteen and asked to borrow a lighter since his own was not working. Mr Chatten lent his own lighter to Mr Wilkinson. A few moments later, according to another employee (Mr Goodwin), Mr Wilkinson was near a trailer facing towards Mr Goodwin and grinning. Mr Graham was behind Mr Wilkinson facing in the opposite direction when he suddenly went up in flames. Reaction of the men around Mr Graham was immediate; a fire extinguisher put out the flames and an ambulance was called.
7. The judge found that Mr Wilkinson had applied thinner to Mr Graham's overalls and that some of that thinner came from a spray container. Mr Wilkinson then used a cigarette lighter in the vicinity of the wet patch on Mr Graham's overalls and that was the cause of the injury.

The Law

8. Every decision on the question whether an employer is vicariously liable for a wrongful act giving rise to injuries caused by his employee must start with the formulation contained in the first edition of Salmond Law of Torts 1^st ed. (1907) page 83 (now 21^st ed. (1996) page 443) that a wrongful act is deemed to be done in the course of the employment, if:-

"it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised mode of doing some act authorised by the master. It is clear that the master is responsible for acts actually authorised by him: for liability would exist in this case, even if the relation between the parties was merely one of agency, and not one of service at all. But a master, as opposed to the employer of an independent contractor, is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes – although improper modes – of doing them."

See Lister v Hesley Hall [2002] 1 AC 215 para 15 per Lord Steyn. The inquiry, in this as in most cases, is thus whether Mr Wilkinson's conduct was "so connected with acts which the defendants authorised that they may rightly be regarded as modes – though improper modes – of doing them". Since Lister v Hesley Hall it is no longer the law (if it ever was) that intentional acts were not usually to be regarded as connected with acts authorised by an employer. That case held an employer liable when an employee, employed to look after children, sexually abused some of those children. In such cases the question is whether the wrongful conduct was so closely connected with acts the employee was authorised to do that the wrongful conduct was to be fairly and properly regarded as done by the employee while acting in the ordinary course of his employment, see Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 366 para 23 per Lord Nicholls of Birkenhead.

9. Lord Nicholls added:-

"25. This "close connection" test focuses attention in the right direction. But it affords no guidance on the type or degree of connection which will normally be regarded as sufficiently close to prompt the legal conclusion that the risk of the wrongful act occurring and any loss flowing from the wrongful act, should fall on the firm or employer rather than the third party who was wronged. It provides no clear assistance on when, to use Professor Fleming's phraseology, an incident is to be regarded as sufficiently work-related, as distinct from personal: see Fleming, The Law of Torts, 9^th ed. (1998), p 427. …

26. This lack of precision is inevitable, given the infinite range of circumstances where the issue arises. 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."

The Submissions

10. Mr Timothy Meakin for Mr Graham submitted:-

i) the defendants had created (or materially enhanced) the risk of injury to their employees by requiring them to work with thinners which were an inherently dangerous substance;

ii) they had vested a power or discretion in their employees as to how the thinner was to be used;

iii) they had recognised this danger by imposing contractual obligations on their employees to use thinners in a responsible manner; those obligations required them to be aware of the content of risk assessments made in relation to their use in the work place;

iv) there was no suggestion of any personal malice on the part of Mr Wilkinson towards Mr Graham, so authorities dealing with cases where there was such malice were distinguishable;

v) the risk of injury from misuse of the thinner was inherent in the nature of the business; and

vi) in the light of the above considerations Mr Wilkinson's conduct was so closely connected with what Mr Wilkinson was employed to do that it was a proper case for recognising the defendants to be vicariously liable.

11. Mr Jonathan Mitchell submitted:-

i) the court should be slow to differ from the evaluative judgment of the judge;

ii) it was highly relevant that the injuries had been caused by Mr Wilkinson's decision to bring the cigarette lighter into the workshop where it had no business to be and to use that lighter in an inappropriate way which had no connection with the defendant's business;

iii) there was nothing inherently dangerous in being required to apply thinners. The only danger arose from Mr Wilkinson's irresponsible conduct;

iv) although there were cases which had decided that the employer was liable for intentional and irresponsible conduct in the workplace, that liability could only arise if such behaviour was inherent in the nature of the business which Mr Wilkinson's behaviour was not; and

v) neither the existence of contractual terms about the use of thinners nor the existence of a discretion given to employees in relation to their use added anything useful to the inquiry since their presence was no different from most other cases.

Discussion

12. There is no decided case which governs the present case. But as Lord Nicholls said assistance given by previous court decisions can be particularly valuable. I can mainly confine the relevant authorities to those that concerned intentional conduct in the work place. Before doing so, however, it is useful to have in mind the two Canadian authorities of Bazley v Curry 174 DLR (4^th) 45 and Jacobi v Griffiths 174 DLR (4^th) 71 which were followed in Lister v Hesley Hall and said by Lord Steyn (para 27) to be the starting point for any inquiry about vicarious liability at any rate in sex cases.
13. It is the first of these cases that it is particularly useful because McLachlin J (as she then was) considered the principles of vicarious liability at paras 41-42 saying:-

"Reviewing the jurisprudence, and considering the policy issues involved, I conclude that in determining whether an employer is vicariously liable for an employee's unauthorized, intentional wrong in cases where precedent is inconclusive, courts should be guided by the following principles:

1) They should openly confront the question of whether liability should lie against the employer, rather than obscuring the decision beneath semantic discussions of "scope of employment" and "mode of conduct".

2) The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability. Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer's desires. Where this is so, vicarious liability will serve the policy considerations of provision of an adequate and just remedy and deterrence. Incidental connections to the employment enterprise, like time and place (without more), will not suffice. Once engaged in a particular business, it is fair that an employer be made to pay the generally foreseeable costs of that business. In contrast, to impose liability for costs unrelated to the risk would effectively make the employer an involuntary insurer.

3) 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:

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 power conferred on the employee in relation to the victim;

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

42. Applying these general considerations to sexual abuse by employees, there must be a strong connection between what the employer was asking the employee to do (the risk created by the employer's enterprise) and the wrongful act. It must be possible to say that the employer significantly increased the risk of the harm by putting the employee in his or her position and requiring him to perform the assigned tasks. The policy considerations that justify imposition of vicarious liability for an employee's sexual misconduct are unlikely to be satisfied by incidental considerations of time and place. For example, an incidental or random attack by an employee that merely happens to take place on the employer's premises during the working hours will scarcely justify holding the employer liable. Such an attack is unlikely to be related to the business the employer is conducting or what the employee was asked to do and, hence, to any risk that was created. Nor is the imposition of liability likely to have a significant deterrent effect; short of closing the premises or discharging all employees, little can be done to avoid the random wrong. Nor is foreseeability of harm used in negligence law the test. What is required is a material increase in the risk as a consequence of the employer's enterprise and the duties he entrusted to the employee, mindful of the policies behind vicarious liability."

14. Although all this was, no doubt, said with sex abuse cases primarily in mind, it is a useful general statement of the position and justifies an inquiry into the question whether there is a close connection between the creation or enhancement of a risk and the wrong that accrues therefrom. On the facts of this case I would, by reference merely to the passage quoted above, conclude that, although the defendant employers did create a risk by requiring their employees to work with thinning agents, it is difficult to say that the creation of that risk was sufficiently closely connected with Mr Wilkinson's highly reckless act of splashing the thinner onto Mr Graham's overalls and then using a cigarette lighter in his vicinity. It is only the first of McLachlin J's five factors that is present in this case. The other factors tell against the imposition of liability. The wrongful act did not further the employer's aims; there was no friction or confrontation inherent in the employer's enterprise and such intimacy as there was likewise had no connection with that enterprise; it is inappropriate to talk either of power conferred on Mr Wilkinson in relation to Mr Graham or any particular vulnerability of Mr Graham to the wrongful exercise of such power.
15. That is not, of course, the end of the matter because it is necessary to see (as Lord Nicholls said) whether there are useful authorities in what is here the relevant field of intentional (non-sexual) wrongdoing that might controvert the above conclusion.
16. The United Kingdom authorities tend to resolve themselves into two groups. On the one hand there are cases in which the use of reasonable force or the existence of friction is inherent in the nature of the employment; thus a night-club owner may be vicariously liable for injuries caused by force used by a bouncer in the course of his duties and a rugby club owner may be vicariously liable for injuries caused by a punch-up during or in the immediate aftermath of a game, see Mattis v Pollock [2003] 1 WLR 2158 and Gravil v Redruth Rugby Football Club Ltd [2008] ICR 1222; I.R.L.R. 829. Similarly there are cases of what one might call normal friction in the workplace which gets out of hand as opposed to uncalled for antagonism which, while occurring in the workplace, originates outside it.
17. Weddell v Barchester Health Care and Wallbank v Wallbank Fox Designs Ltd [2012] EWCA Civ 25; [2012] I.R.L.R. 307 form an instructive contrast. In the first case the employer of a care home was held not to be vicariously liable when one employee made a call out of hours to another employee (Mr Marsh) requesting him to do a voluntary shift to replace a sick employee. Mr Marsh, who had a history of antagonism with the first employee (Mr Weddall), was at home in an inebriated state having had a domestic row. He declined to come; instead he bicycled to the care home and launched an unprovoked attack on Mr Weddall. The employer was held not to be vicariously liable. Mr Wallbank, in the second case, was at work in the normal way and was somewhat curt with a co-employee when indicating that he needed help with loading bed frames onto a conveyor belt. There was some minor history of difficulty between them but on this occasion the co-employee lost his temper and threw Mr Wallbank 12 feet across the factory floor onto a table. The employer was in that case held to be vicariously liable because the possibility of friction is inherent in any employment relationship, particularly in a factory where instant instructions and quick reactions were required. None of these cases is decisive of the present case.
18. Somewhat closer is a second group of cases in which the nature of the employment is not such as to require the exercise of some force or to involve the kind of friction inherent in an employment relationship. These cases arise from intentional acts at the workplace (whether horse-play or rather more serious conduct) and do not usually give rise to vicarious liability. This group is best exemplified by two Scottish cases. In Wilson v Exel UK Ltd [2010] CSIH 35; [2010] SLT 671 an employee, who supervised the defendant's health and safety policy, pulled Ms Wilson's ponytail making a ribald remark while he did so. This was little more than a prank but Ms Wilson sustained some injury. The Inner House held that the supervisor's actions were not connected with his employment; in pulling Ms Wilson's ponytail he was not doing anything in relation to his health and safety duties. The acts of the supervisor were a mere frolic for which the employee was not vicariously liable. Lord Carloway (with whom Lord President Hamilton and Lord Reed agreed) discussed cases within the first group I have described and then said:-

"32. But there is a crucial distinction between these cases and the situation where the employee is not doing something connected with his duties but is engaged on a "frolic" of his own, in the sense of acting purely on a private venture unconnected with his work. A barmaid, charged simply with serving customers, who assaults a customer with a glass, does not bring home liability to her employer (Deatons Pty v Flew, quoted in Lister v Hesley Hall (supra)). As Lord Reed said in Ward v Scotrail Railways, there can be no vicarious liability based upon a co-employee's sexual harassment where that involved "an unrelated and independent venture of his own: a personal matter, rather than a matter connected to his authorised duties" (at p 264; cf claims under the Protection from Harassment Act 1997 s 10, referred to in Majrowski v Guy's and St Thomas's NHS Trust (supra), Lord Nicholls of Birkenhead at [2007] 1 A.C. p 236, para 40, Lord Hope at p 242, para 58). Gibson v British Rail Maintenance, is an illustration of a pursuer correctly abandoning a case of vicarious liability based upon the consequences of a prank carried out by co-employees (see Lord President (Hope) at 1995 SC, p 9; 1995 SLT, p 954).

33. The cases are all consistent with the dictum of McLachlin J in Bazley v Currie (supra at para 42) that: "an incidental or random attack by an employee that merely happens to take place on the employer's premises during working hours will scarcely justify holding the employer liable. Such an attack is unlikely to be related to the business the employer is conducting or what the employee was asked to do."

19. In Vaickuviene v Sainsbury Plc [2013] CSIH 67 a Mr Romasov was killed by a fellow employee (Mr McCulloch) in a Sainsbury's supermarket in Aberdeen; this fellow employee had, two days earlier, told Mr Romasov that he did not like immigrants and that he should go back to his own country. On the night of the killing there had been an argument when the co-employee objected to Mr Romasov sharing his table and a further argument in the toilets. Later the co-employee picked up a kitchen knife from the kitchenware section of the supermarket and stabbed Mr Romasov in one of the aisles. Lord Carloway (now Lord Justice Clerk) referred to his previous judgment in Wilson v Exel and said:-

"… the decision in Wilson (supra) is not to be interpreted so narrowly as to be applicable only to conduct in the nature of "pranks. The use of the expression "frolic" in that case (at paras [30] – [34]) is, as already noted, not indicative of triviality with respect to the wrongful acts in question. The principles set out in that case may be taken to be of general application in cases of intentional wrongdoing. Whilst the pursuers have sought to distance themselves from the "random attack" by characterising the deceased's murder as part of a course of conduct amounting to harassment, there is no basis for departing from the court's analysis of the law in Wilson (supra). Referring as a whole to Mr McCulloch's conduct from 13 to 15 April, being the period over which the harassment is alleged to have occurred, does not remedy the fact that there is no connection between the harassment and what McCulloch was employed to do. Rather, McCulloch's employment simply provided him with the opportunity to carry out his own personal campaign of harassment with tragic consequences."

20. It can, of course, be said that in this latter case the aggressive act was much more serious than that of Mr Wilkinson but the extraneous use of the knife was not dissimilar to the extraneous use of the cigarette lighter. It seems to me that Mr Wilkinson's conduct was similar to the conduct of the co-employees in these two Scottish cases and that this case, like them, falls within the second group of cases in which it is inappropriate to impose vicarious liability.
21. The most recent English authority on pranks at work brought to our attention was Aldred v Naranco [1987] I.R.L.R. 292 in which a co-employee pushed a wash basin against Ms Aldred in order to startle her. She turned round quickly to see what was going on and injured her back in the process. Applying the traditional Salmond test this court held that the co-employee's act was not so connected with the authorised act of going into the wash room for normal purposes that it was appropriate to impose vicarious liability on her employers. Smith v Crossley Bros. Ltd CA Transcript 4^th October 1951 is to the same effect but obiter, see page 4 per Singleton LJ. These cases were of course, pre Lister v Hesley Hall and it is for that reason that I have relied more on the Scottish cases which post-dated Lister.
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.
23. While having considerable sympathy for Mr Graham in all the circumstances of this case, I fear his appeal must be dismissed.

Lord Justice Underhill:

24. I agree.

Lady Justice Sharp:

25. I also agree.