England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER COUNTY COURT AND FAMILY COURT
(RECORDER SEPTON, QC)

		Royal Courts of Justice Strand London, WC2A 2LL
		20 October 2016

LORD JUSTICE LONGMORE:

1. On Saturday 18 June 2011 the claimant, Mr Tony Fletcher, a police officer, was riding an electric power-assisted police mountain bike along a cycle lane of the eastbound carriageway of Liverpool Road in Eccles at approximately 12.45 pm. While the traffic in the carriageway was slow-moving or stationary, Mr Derek Traynor was crossing the road on foot. He emerged from behind a transit van and collided with the claimant in the cycle lane. The claimant fell to the floor and sustained injury including a ruptured anterior cruciate ligament.
2. Mr Traynor was at the relevant time employed by a plumbing and heating business, PBT Builders, the trading name of the defendant and appellant, Chancery Supplies Limited ("CSL"), who owned a shop at 432 Liverpool Road, on the same side as the cycle lane, and also an office at 405 Liverpool Road which was on the opposite side of the street. Mr Traynor worked exclusively at the shop rather than the office. At the time of the accident he had not been in the shop but was crossing the road towards the shop at 432. Mr Traynor left his employment in August 2011 and, for whatever reason, did not give evidence at the trial, but there was evidence that he was due to finish his shift at twelve noon on that day. But there was no evidence of the reason why Mr Traynor was crossing the road back towards the shop at number 432. Mr Recorder Sephton held that Mr Trainer had been negligent and that Mr Fletcher had not contributed to his own injuries through his own negligence. There is no appeal from those findings. The judge then found CSL to be vicariously liable for Mr Traynor's negligence. It is from that finding that CSL now appeals.
3. Mr Traynor had given a statement to the police at the time of the incident in which he said, "I have attempted to cross the road to where my shop is on 432 Liverpool Road". He also gave that as his address. Evidence for the defendant was given by Mr O'Neill, who was working that day in the back of the office at 405 Liverpool Road and had seen Mr Traynor in the shop at about 9 am. He said that there was no reason for Mr Traynor to have gone to 405 Liverpool Road. He also said that it was possible that Mr Traynor was still working at 12.45 if he had agreed this with Mr Pearson, who followed on after his shift.
4. The judge held that Mr Trainer was at the time acting in the course of his employment on the basis of the following factors: (1) when the police asked him for his address, Mr Traynor said 432 Liverpool Road despite the fact that he lived only ten minutes away; (2) he said to the officer, "I have attempted to cross the road to where my shop is on 432 Liverpool Road"; and perhaps (3), although this is not included at the time when the judge gave his essential reasons for his judgment but is included in the narrative of events, that there was evidence that Mr Traynor had been wearing his work boots and a golf shirt that carried the logo of CSL.
5. The judge said at paragraph 9 of the judgment:

"I do not know why he went out of the shop and was therefore crossing the road back to the shop and in my judgment it does not matter because at the relevant time he was working there, he was going back to the shop in order to work and in my judgment he was doing so in the course of his employment."

6. Mr Dale on behalf of CSL has two grounds of appeal. First, he submits the judge was wrong as a matter of fact to conclude on the evidence before him that Mr Traynor was at work at the time of the accident because there was no evidence to support that finding; and secondly, that the judge failed to consider how the act of crossing the road was in the course of employment even if Mr Traynor was still on duty at 12.45 pm. There was originally a third ground of appeal which sought permission to adduce further evidence. That evidence was from Mr Traynor but that ground of appeal has not been pursued in the face of the court and (I would like to say) rightly not pursued.

The first ground of appeal

7. The evidence before the recorder was that normally Mr Traynor finished working at twelve noon on Saturdays. It is true that Mr O'Neill said it was possible that he had extended his shift if he had agreed to do so with his fellow worker, but there is no evidence that that is what happened. If the position was that Mr Traynor's shift had come to an end and that, whatever he was doing that resulted in his crossing the road, he was not doing it in his employer's time or for his employer's benefit, it must follow that while he was crossing the road he was not acting in the course of his employment. As I have said, the judge inferred he was working at the time because in his statement he had said his address was 432 Liverpool Road, which was only ten minutes away; secondly, that he said he was crossing the road and was in fact crossing the road "to where my shop is"; and perhaps thirdly on the basis of his wearing his work clothes.
8. In my judgment these factors do not amount to evidence from which it is legitimate to infer that Mr Traynor was working for his employer at the time; nor do they point to the fact that he extended his normal working hours. The fact that he lived ten minutes away but said his address was 432 Liverpool Road is really irrelevant to that question and so in my judgment is the fact that he may have continued to wear his work clothes for three quarters of an hour after his normal time of ceasing to work. That can hardly be an unusual event. Mr Thompson for Mr Fletcher sought to make much of the fact that Mr Traynor was crossing the road "to his shop" and asks rhetorically why he should be doing that if he was not working and could have crossed the road at any other point. But it is scarcely surprising that, whatever the reason was that Mr Traynor was on the other said of the road and needed to cross back, he should do so at the place he normally crossed in any event. It seems to me that there was no legitimate basis on which the recorder could find that Mr Traynor was still at work, and I would for my part allow the appeal on that first ground.
9. That is not an end to the matter because I would also allow the appeal on the second ground. In Mohamud v William Morrison Supermarkets Plc [2016] AC 677 the Supreme Court declined an invitation to broaden the traditional test for vicarious liability and restated that test in the following terms, which I take from paragraphs 44 and 45:

"44. In the simplest terms, the court has to consider two matters. The first question is what functions or "field of activities" have been entrusted by the employer to the employee, or, in everyday language, what was the nature of his job. As has been emphasised in several cases, this question must be addressed broadly ...

45. Secondly, the court must decide whether there was sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice which goes back to [Chief Justice] Holt."

10. That reference to Chief Justice Holt is a reference to Turberville v Stamp (1698) 1 Ld Raym 264.
11. The answer to the first question is that Mr Traynor's field of activity was that of a shop assistant in a shop supplying plumbing and heating materials. The answer to the second question is that even if Mr Traynor was at work it is impossible to know whether his crossing over the road at 12.45 or so was "sufficiently connected" with his work as shop assistant to make it right for his employer to be held liable under the principles of social (or indeed any other form of) justice. The judge said that once he had held that Mr Traynor was at work, "I do not know why he went out of the shop and was therefore crossing the road back to the shop, and in my judgment it does not matter because at the relevant time he was working there". But with all respect the judge was wrong about that. He could not answer Lord Toulson's second question unless he could say why Mr Traynor went out of the shop and was then crossing back to the shop. If the judge did not know why Mr Traynor was so doing, the judge had no option but to say that the claimant had not shown that there was a sufficient connection between Mr Traynor's job and his negligence.
12. Mr Thompson said that that was all very unfair because an employer only has to fail to call his employee and then the claimant loses, but that is not a usual scenario. Usually (or at any rate often) there will be evidence of the circumstances surrounding the act of negligence that will enable a court to decide whether there was a sufficient connection with the job for the purpose of answering Lord Toulson's second question. But in this case there was no such evidence, and one might point out that in any event it is always open to a claimant to seek to call the employee himself, albeit one recognises that would not be a very usual course.
13. But for those reasons I would allow this appeal.

LORD JUSTICE PATTEN:

14. I agree.

Order: Appeal allowed