England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

		24 October 2002

H.H. Judge Richard Seymour Q. C. :

Introduction

1. On 1 August 1998 at about 1.40 a.m. the Claimant, Mr. David Mattis, was stabbed by Mr. Stephen Cranston. The knife used by Mr. Cranston severed the spinal cord of Mr. Mattis at the T11 level. Mr. Mattis is now a paraplegic. He was born on 4 July 1958, and so he is now 44 years of age. He had been self-employed as a carpenter. He is no longer able to work. In this action Mr. Mattis claims damages against Mr. Gerrard Pollock in respect of the injuries inflicted by Mr. Cranston. Mr. Pollock has denied liability to compensate Mr. Mattis for his injuries. Separate trials of questions of liability and quantum were directed by Master Foster by an order dated 21 February 2002. This trial has been concerned with questions of liability.
2. Mr. Pollock is apparently now some 69 years of age. Until January 2000 Mr. Pollock owned and operated a nightclub ("the Club") in Wellington Street, Woolwich, London SE18 which was called "Flamingo's". It seems that in January 2000 Mr. Pollock entered into a voluntary arrangement with his creditors which, amongst other things, involved him selling his interest in the Club to his son. It seems that Mr. Pollock is no longer in employment and that he has few, if any, assets. However, he did, whilst operating the Club, maintain both employer's liability and public liability insurance. That insurance was provided under policies written by Independent Insurance Co. Ltd. That company went into provisional liquidation on 17 June 2001, but there seems to be some prospect that there will be an amount of cover in respect of the claim of Mr. Mattis if it is successful.
3. Whilst he operated the Club Mr. Pollock engaged the services of a number of doormen. The principal tasks of the doormen seem to have been to control entry into the Club in accordance with directions given by Mr. Pollock and to maintain order inside the Club amongst those who had been admitted.
4. The case of Mr. Mattis against Mr. Pollock depends critically upon the assertion that Mr. Pollock employed Mr. Cranston as a doorman at the time Mr. Cranston attacked Mr. Mattis. That assertion is denied on behalf of Mr. Pollock. Consequently a vital issue of fact for me to determine is whether Mr. Cranston was employed as a doorman as at 1 August 1998. Another issue which I shall have to determine is whether, on the footing that he was ever employed by Mr. Pollock as a doorman, which was denied on behalf of Mr. Pollock, Mr. Cranston was working as a doorman at the Club on the night of 31 July – 1 August 1998.
5. On the basis that Mr. Pollock did employ Mr. Cranston as a doorman as at 1 August 1998 and Mr. Cranston was working on the night in question, it was contended on behalf of Mr. Mattis by Mr. Paul T. Rose Q.C., who appeared at the trial before me together with Mr. Timothy Meakin, first, that Mr. Pollock was vicariously liable for the injuries inflicted by Mr. Cranston, and, second, that Mr. Pollock was liable for those injuries because they were the result of a breach on the part of Mr. Pollock of a duty of care which he owed to Mr. Mattis. The precise nature of the duty of care contended for I shall have to consider later in this judgment.
6. The facts as to the circumstances in which Mr. Mattis sustained his injuries at the hands of Mr. Cranston were not, in the event, seriously in dispute. There was some dispute as to the behaviour of Mr. Cranston in the Club on occasions earlier than the date of the attack on Mr Mattis, and I shall have to make findings in respect of the contested matters relied upon on behalf of Mr. Mattis in support of the allegation that Mr. Cranston was, to the knowledge of Mr. Pollock, unsuitable to perform safely the duties of a doorman. However, even on the version of events contended for on behalf of Mr. Mattis by Mr. Rose it is necessary to consider with care the application in this case of the principles laid down by the House of Lords in Lister v. Hesley Hall Ltd. [2002] 1 AC 215 as those by reference to which the question whether an employer is vicariously liable for the actions of his employee falls to be determined.
7. A further important question, dependent upon the issues whether Mr. Pollock owed to Mr. Mattis any relevant duty of care, and if so what, is whether the injuries sustained by Mr. Mattis at the hands of Mr. Cranston were caused by a breach of that duty of care.

The employment of Mr. Cranston

8. The evidence that Mr. Pollock employed Mr. Cranston at all as a doorman included the admitted fact that on 26 August 1999 Mr. Pollock was convicted at Woolwich Magistrates Court of employing Mr. Cranston as an unregistered or, to use the terminology of this action, unlicensed, door supervisor on or about 31 July 1998. The requirement that only registered door supervisors be employed on premises such as the Club was imposed by London Local Authorities Act 1995 s.31. The relevant licensing authority was the Council of the London Borough of Greenwich. While there is some evidence that Mr. Cranston had applied to that authority for registration as a door supervisor, to which evidence I refer later in this judgment, he certainly had not in fact been registered. By virtue of the provisions of Civil Evidence Act 1968 s.11(2)(a) the fact of his conviction meant that Mr. Pollock was to be taken to have committed the offence charged unless the contrary was proved. In the Defence in this action it was pleaded that the conviction of Mr. Pollock to which I have referred was erroneous. The evidence in support of the allegation that the conviction was erroneous was that contained in a witness statement of Mr. Pollock dated 30 August 2002, which itself referred to and incorporated a statement which Mr. Pollock had made to the police dated 1 August 1998. Mr. Pollock was not called to give evidence in person. Two letters from doctors attending him were put before me in each of which the view was expressed that, given his state of health, the giving of oral evidence could have deleterious consequences for him. In those circumstances Mr. Benjamin Browne Q.C., who appeared with Mr. Roger Harris on behalf of Mr. Pollock, applied to me for permission to adduce the statements of Mr. Pollock to which I have referred in evidence under the provisions of Civil Evidence Act 1995 s.1. I acceded to that application. However, in the circumstances there was no opportunity for Mr. Rose to cross-examine Mr. Pollock on behalf of Mr. Mattis. That inevitably must affect the weight to be attached to the evidence of Mr. Pollock.
9. What Mr. Pollock said in his statement to the police dated 1 August 1998 about the employment of Mr. Cranston was this:-

"I own Flamingos and have done for the past 12 years. I employ 5 doormen, they are all registered with Greenwich Council. For the past 3 or 4 weeks a big black guy called Steve has been coming to the club, I think someone knew him from Tee's. He has asked me for a job but because he isn't registered by the Council I told him he couldn't be employed. I have never paid him any wages. He's been coming Friday and Saturday nights just handing [sic] around. He hasn't been searching anyone or anything like that. "

10. The account which Mr. Pollock gave in his witness statement dated 30 August 2002 about the employment of Mr. Cranston was:-

"7. With regard to Stephen Cranston, I recall being approached by him and asked if I would give him a job. He was physically imposing being some 6 foot 7 inches tall and over 20 stone. I believe that he was known to some of the other bouncers. I made it clear that in order to employ him he would need to get his licence from Greenwich Borough Council. Once he had obtained his licence, I would consider whether he could be employed as a door supervisor and work the door. In particular I would need to ensure that he was known by other doormen.

8. I therefore deny that Stephen Cranston was employed by me as a door supervisor on the night in question [that is, 31 July - 1 August 1998] or indeed at any time prior to the incident."

11. The evidence relied upon as disproving the correctness of Mr. Pollock's conviction was thus simply his own assertion, which in the circumstances was not tested by cross-examination.
12. Against the proposition that Mr. Cranston had never been employed as a doorman by Mr. Pollock there were, apart from the fact of Mr. Pollock's conviction, a number of pieces of evidence.
13. One of those whom Mr. Pollock did accept that he had employed as a doorman was Mr. Vincent Oligbo. Mr. Oligbo was registered as a door supervisor by the Council of the London Borough of Greenwich. Mr. Oligbo was called to give evidence on behalf of Mr. Mattis. Mr. Oligbo had made a statement to the police following the attack made by Mr. Cranston on Mr. Mattis. That statement was dated 21 August 1998. The subject matter of the statement was really only the events of 31 July 1998 and 1 August 1998. In the course of the statement Mr. Oligbo said:-

"At about ten o'clock I remember seeing Steve in the club talking to a girl. I don't know his surname but I have known him for about two years, we used to work out at the Waterfront gym. He is very powerful, heavily built. I think he used to box and do modelling work. He is a very nice, placid guy. That night he was wearing a white short sleeved t-shirt. I can't remember if he was working that night or not. I know he had applied for his registration badge. He would come up to Flamingos because the club he normally worked at, in Erith, was being renovated. The thing with Steve is he has no problem getting work as a doorman because of his size."

The reference to Mr. Oligbo not being able to recall whether Mr. Cranston was working on the night in question is suggestive of Mr. Cranston sometimes working at the Club. If Mr. Cranston never worked there one would have expected Mr. Oligbo to have made that point rather than the one he did.

14. Mr. Oligbo made a statement for the purposes of the trial before me. That statement was dated 6 September 2002. The statement included this passage:-

"13. It was I that introduced Steve Cranston to the Defendant. I am a keen boxer and attend a gym in Woolwich, it was here that I met Steve. Steve is a big lad about 6 ft 9 inches and weighted in the region of 20 stone. He was all muscle. We got chatting at the gym and would sometimes spar together. I quite liked him and thought he had a good sense of humour. Steve also worked as a casual doorman at Tee's Night-club in Erith. I told him about my work at Flamingos and he told me he would come down one night to check it out. One night in the middle or end of June 1998, Steve did come to the club. Steve as I have already said is a big lad and has quite a presence about him. You certainly couldn't miss him. I remember Mr. Pollock being in aura [sic] of Steve's size. Mr. Pollock asked me who Steve was and I mentioned that he worked at Tee's night-club, the Defendant asked me if Steve wanted a job. I told him that Steve was unlicensed. Later that evening I saw the [Defendant] …speaking to Steve and subsequently discovered that he had offered him a job. I was surprised that Mr. Pollock had done this. I reminded him that Steve was not licensed. He said that it didn't matter, he needed someone new to intimidate a few of the regulars. He said that some of the other doormen and I where [sic] too polite to the customers and that this was encouraging them to misbehave.

14. During Steve's first few weeks at the club I realised he was trouble in the club in that he had an uncontrollable temper. I was present at a conversation when Mr. Pollock informed Steve that he had a few regulars he wanted sorting out. In particular I heard him instruct Steve to deal with a guy by the name of Paul Fitzgerald. I do not know Paul personally, but he usually came to the club every Friday night. I knew the [sic] Paul owned the snooker hall in Plumstead.

15. In about mid-July 1998, there [was an] incident at the club involving Steven Cranstson [sic], Paul Fitzgerald was present with a few of his mates and they were drinking at the bar. I did not witness to the initial fracas as I was in the foyer, but I attended soon afterwards. Apparently Steve had thrown one of Paul's friend[s] across the floor. Paul and his friend were trying to tell Steve to calm down, Steve looked angry and frightening, I could hear Paul saying that there was no need for this and Steve shouting the [sic] he would teach them not to fuck with him. Both Paul and his friend looked terrified. I and one of the other doormen intervened to try and calm matters down. Paul and his friend ran out of the club. I remember telling Steve he couldn't behave this way with people.

16. I did speak to Mr. Pollock afterwards about this incident, saying that this was not on. I told him that I thought Steve could be dangerous and again reminded him that he was unlicensed. To the best of my knowledge he took no action about this incident. I and a few of the other doormen also complained of Steve's failure to perform his job.

David Mattis

17. I was working on the night of David Mattis' stabbing. I not sure [sic] if Steve was formally working that night, but he was definitely present from the earlier part of the evening."

15. In his oral evidence to me Mr. Oligbo said that, contrary to what he had said in his statement to the police and in his statement dated 6 September 2002, he was positive that Mr. Cranston had been working as a doorman at the Club on the night of 31 July – 1 August 1998. He explained that he had said what he had in his statement to the police because he had been asked by Mr. Pollock to suggest that Mr. Cranston did not work at the Club, or at any rate had not been working at the Club on the night Mr. Mattis was injured. He said that, having originally given the account which he did to the police, he had thought that he had better be consistent in his statement made for the purposes of this action. He suggested that when he described Mr. Cranston in his statement to the police as "a very nice, placid guy" he was speaking only of his experience of Mr. Cranston at the gym. None of these explanations strike me as remotely satisfactory. In his witness statement dated 6 September 2002 Mr. Oligbo said that he had just graduated in law from the University of East London and intended to qualify as a solicitor. He told me from the witness box that at the time of the injury to Mr. Mattis he, Mr. Oligbo, had been working as a doorman at the Club to help support himself during his legal studies. He said that he needed the job and did not want to put it in jeopardy by upsetting Mr. Pollock by not complying with his wishes in the matter of a statement to the police. The fact of the matter is that Mr. Oligbo was prepared to give an untrue account because it suited his personal interests to do so. It appears that he also gave a similar untrue account on oath in Woolwich Magistrates Court on the occasion of the prosecution of Mr. Pollock for employing Mr. Cranston as an unregistered door supervisor on or about 31 July 1998. It seems to me that these matters raise serious concerns as to the fitness of Mr. Oligbo to be admitted as a solicitor in the event that he achieves the appropriate academic qualifications to do so. Nonetheless I must have regard to his evidence before me, together with the other evidence, in making my findings of fact.
16. There was no evidence of Mr. Pollock undertaking any steps preliminary to employing Mr. Cranston as a door supervisor, such as taking up references from those who apparently employed him as a door supervisor in Erith, or, indeed, anyone else. In fact it seems that Mr. Cranston, who emanated from Jamaica, had, in 1998, no criminal convictions in either Jamaica or the United Kingdom.
17. The incident as to which Mr. Oligbo spoke concerning Mr. Cranston and Mr. Paul Fitzgerald and one of his friends seems to have occurred on 17 July 1998, or rather early the following morning. Mr. Steven Priestman was the friend of Mr. Fitzgerald who was allegedly thrown across the room by Mr. Cranston. Mr. Priestman was not really challenged as to the account which he gave of the incident in a witness statement dated 3 September 2002. The essence of that account was this:-

"6. That night Paul his friend Gus and I decided to go to Flamingos. After shutting up the snooker club the three of us got into a cab at about midnight.

7. We arrived at the club at about 12.15 a.m. Paul is acquainted with the owner of Flamingos Gerard Pollock, the defendant. Normally whenever I went into Flamingos I would see Gerard Pollock seated in the front foyer by the cash till. When we arrived at Flamingos, Gerard was in his usual place. Gerard and Paul greeted each other with a nod and a grin and he waved us in to the club. It was quite common for me not to pay the admittance fee when in Paul's company.

8. We walked over to the main bar and sat down to have a couple of drinks. I had had a few pints at the snooker club. I believe that during the 4-5 hours of that evening (from about 10.00 p.m. to 2.30 p.m.) I had had a total of 6 pints of beer.

9. I spent most of the evening chatting up the barmaid. I was in good spirits and the conversation was light and jovial. Just after 2.00 a.m. A very large black doorman (who I now [know] to be Steve Cranston) came over to us and in a hostile and aggressive tone told us to drink up. I looked at the guy he was not a familiar doorman. I remember taking in his enormous size. I believe him to be a doorman from the way he was dressed in his black trousers and white T-shirt and from his general mannerism. I remember saying "Alright mate, we're drinking up". I still had half a pint of beer to finish. I turned back to speak to the barmaid to ask for her phone number when all of a sudden I felt the doorman grab me by the scruff of my neck and fling me across the floor in the direction of the front foyer. I remember stumbling and trying to regain control of my feet. I was shocked, I could not comprehend what I [sic] just happened.

10. The bar had not yet closed the shutters were still up. The club was still packed there were at least 200 people around the club. In fact Paul and I were usually the last to leave the club, we would often stay behind to speak to the doorman or have a drink with Gerard's wife Sheila if she was at the club.

11. Surprised by what had happened, I also have to admit I felt intimidated by the doorman's aggression that was being directed at us. Paul came over to stand by me and told him to calm down and there was no need for him to act in that way. Paul told him that he knew Gerrard and Sheila, and we both had our hands held up in a calming gesture.

12. The doorman grabbed Paul and the situation was getting out of hand. The doorman then went over to the bar and managed to get a bottle from behind the bar and was holding the bottle like a weapon. He was thrusting it in our direction shouting at us words that included "don't fuck with me".

13. Paul and I were at a loss, fortunately two of the other doormen came over to us. Another doorman was telling him to put the bottle down and asking him what he thought he was doing. Paul and I took this opportunity to leave the club. As we got in to the foyer in order to leave by the side door, Paul screamed out to Gerrard about the incident and said words to the effect that his doorman was mad."

In cross-examination Mr. Priestman said that although, as he was leaving the Club on the occasion in question, he remembered Mr. Fitzgerald speaking to Mr. Pollock, he could not remember what he said. Mr. Priestman did not suggest that he suffered any real injury as a result of being thrown across the room by Mr. Cranston.

18. Another doorman whom Mr. Pollock agreed he had employed at the Club was Mr. William Freeman. Mr. Freeman, like Mr. Oligbo, was appropriately registered by the local authority. Mr. Freeman was also called to give evidence on behalf of Mr. Mattis. Mr. Freeman made a statement to the police dated 18 August 1998. The statement was principally concerned with the events of 31 July 1998 and 1 August 1998, but it included this passage:-

"The owner of the club also employs unlicensed doormen. One of the unlicensed doormen present that night [that is, the night of 31 July – 1 August 1998] was a large black man I knew as Steve. I had first seen Steve about six weeks previously when he started working on the door. We had introduced ourselves and we chatted about his previous work at "T's" night club in Erith. He was there all the Fridays I worked there and also I heard he worked Saturdays as well. I found his attitude strange and he was not easy to talk to. I remember he seemed "laid back" sometimes, dancing whilst on the door which I'd never seen a doorman do. He'd do this in front of women as if showing off. His behaviour changed when he talked to people, he used his size to intimidate people. He would always take off his jacket and wearing a short sleeve t-shirt would expose his arms. I found his whole attitude to people was poor and I thought he was a bully. A few of the doormen were moaning about him dancing more than working and I remember asking the owner Mr. Pollock where he got him from. He replied: "He's got a reputation, and the door's very weak"."

19. In his witness statement dated 19 September 2002 prepared for the purposes of the trial before me Mr. Freeman repeated, as he did orally in the witness box, the substance of the account from his statement to the police which I have quoted in the previous paragraph. In his recent witness statement, at paragraph 15, Mr. Freeman also said this:-

"When the situation began to quieten down again [on 1 August 1998 after the attack on Mr. Mattis] Mr. Pollock pulled the other doorman and me to one side and told us that if the police asked, Stephen Cranston did not work at the club. I was furious I reminded Mr. Pollock of my position as a Councillor and informed him that I would not be lying for him. Mr. Pollock was fully aware that he should not have been employing unlicensed doorman and I was not prepared to risk my position for him. Indeed when I was questioned by the police I confirmed that Stephen Cranston had been employed by Mr. Pollock as a doorman that night. In any event I had warned and Mr. Pollock was fully aware of Stephen Cranston [sic] aggressive nature. Mr. Pollock was displeased by my unwillingness to cover up for him."

20. Mr. Mattis and Mr. Dean Cook gave evidence of an incident which took place on 24 July 1998 at about midnight. The first account which Mr. Mattis gave of that incident was in a statement which he gave to the police following the attack on him made by Mr. Cranston on 1 August 1998. That account was as follows:-

"We [that is, Mr. Mattis and Mr. Cook] got to the Club at around about midnight. Both Dean and I walked into the foyer. There weren't many people in the foyer, mainly five or six doormen plus the owner Gerry. I knew of Gerry but not to talk to. As we walked in I think Dean said, "Alright Ger", as if to ask if it was alright to come in. Gerry appeared very grumpy, not looking at us but I'm sure I heard him say words to the effect, "He's barred". He said this to the nearest bouncer who was a massive black man. I'd never seen him before although I wasn't a regular at the Club. Gerry turned his back when he said this. I can't remember what Dean said but he asked Gerry why and that he'd never caused any trouble before. Gerry kept his back to him and wouldn't talk. I think the black bouncer stepped in then and said "Get out". Dean then tried to explain that he'd never caused any trouble at the Club. Dean was in no way aggressive or threatening. The black bouncer on the other hand was very aggressive and intimidating. I got the impression that he wanted to start a fight. I was just standing watching. I never got involved in the argument at all. As I realised that this black bouncer was not going to listen and could only get more aggressive. I put my arm around Dean and led him out. He just came and was saying "I haven't done anything Dave." As we were walking out of the main doors I passed another bouncer and he said "Just leave it a couple of weeks and then come back." Both Dean and I were on the pavement outside walking to get a cab. The next thing I remember is that the big black bouncer had followed us out. He was standing outside the main doors. I can't remember exactly what he was saying, abusive and threatening words were shouted by this black bouncer directed at Dean. I couldn't understand why this man was doing this as he had done his job and we were leaving the Club. Neither of us said anything to him, it was obvious he just wanted to start a fight. We just got in the cab and left."

21. In his witness statement dated 6 September 2002 made for the purposes of this action Mr. Mattis essentially repeated the account of the incident on 24 July 1998 which he had given in his statement to the police, but, at paragraph 8, he added this:-

"As I saw matters, he [that is, Mr. 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 as it obviously gave a strong impression to the persons in the club as to what action they could expect if Pollock chose to remove them."

22. In his oral evidence in cross-examination Mr. Mattis told me that on the occasion upon which Mr. Cranston ejected Mr. Cook he, Mr. Mattis, heard Mr. Pollock speak to Mr. Cranston but he did not hear what Mr. Pollock said. However, it was after Mr. Pollock had spoken to Mr. Cranston that Mr. Cranston told Mr. Cook that he was barred.
23. Mr. Cook also made a statement to the police in August 1998. In that statement, dated 1 August 1998, he gave a rather brief account of the incident on 24 July 1998. That account was:-

"About two weeks ago I attended Flamingos on a Friday night with Dave Mattis. On approaching the door I was confronted by a large black male who was acting as a bouncer for the club. I had never seen him before, he was about 6'6", very large build. He refused my entry to the club saying that I took too long to leave a week ago. He obviously had me confused with someone else. I explained that I had not been to Flamingos for about three weeks. He was aggressive towards me and still would not allow me in. The strange thing about this is that the other bouncer seemed intimidated by him, bearing in mind that I know them and that I have not been involved in any trouble in the club. One of them approached me and said "Don't worry he's new, give it a couple of weeks." This new bouncer who refused me entry was a lot bigger than the others. David and myself then left and caught a taxi home even though David could if wanted been allowed in."

24. In his witness statement dated 6 September 2002 made for the purposes of the hearing before me Mr. Cook gave a somewhat expanded account of the incident on 24 July 1998:-

"7. ….On approaching the front door of the club I was confronted by a large black male, he was dressed as a doorman. I had never seen him before. He was about 6.6 ft and was of a very large build. He told me that I could not go in as I had taken a long time to leave the week before. I said that he was mistaken and that he had me confused with someone else. I tried to explain to him that I had not been to Flamingos for some time. The doorman became angry and clearly was not prepared to be reasonable and in fact his manner and the way he acted towards us was threatening. I knew some of the other doormen and I tried to get some support from them, but none of them would come to my assistance; they were all looking down at their shoes. I could also see the Defendant, Gerrard Pollock sitting in the foyer. I know Gerrard through another friend. Gerrard could clearly see what was happening, I was trying to get his attention to find an explanation as to what was happening. Gerrard was not prepared to meet my frustrated gaze. What surprised me is that he got off his stool and walked away. David grabbed hold of my shoulder and started to direct me away. I kept saying to David that this was wrong and that he had made a mistake. David told me that it would be best if we left. As we were leaving we were approached by one of the other doormen who said words to the effect of "don't worry, he's new, give it a couple of weeks".

8. The black doorman started to follow us obviously feeling superior as he had got one over us. It felt like the doorman was trying to stamp his authority and was threatening. None of the other doormen was willing to challenge him. Since he was clearly new, I thought may be Gerrard had brought him as a senior doorman to shake up the other doormen. I was confused as I had always considered myself to be friendly with Gerrard and I had often had a drink with his wife, Sheila, when accompanied by my friend Paul Fitzgerald. I admit I was frustrated as to why the doorman would not listen to me and I kept saying that he had made a mistake. I felt embarrassed by having been turned away, however I decided to call it a night."

25. In his oral evidence Mr. Cook told me that Mr. Pollock was present when Mr. Cranston had spoken to him on 24 July 1998. He said that Mr. Pollock had spoken to Mr. Cranston and had then looked down at the floor and had turned away from Mr. Cook. In cross-examination Mr. Cook told me that the main focus of his attention on 24 July 1998 was Mr. Cranston. He said that Mr. Pollock was towards the back of the foyer of the Club when Mr. Cook was confronted by Mr. Cranston and that Mr. Pollock had moved out of Mr. Cook's line of sight by the end of the incident.
26. Pursuant to a direction of Master Foster given on 21 February 2002 the transcripts of the evidence of the trial of Mr. Cranston on charges which included causing grievous bodily harm with intent to do so to Mr. Mattis on 1 August 1998 are admissible in evidence at the trial before me. The trial of Mr. Cranston took place at Woolwich Crown Court before H.H. Judge Pryor Q.C. and a jury between 15 and 26 March 1999. The transcript runs to some 1000 pages and a copy was put before me. I indicated on the first day of the trial before me that I was not inclined to read any part of the transcript unless specifically invited to do so by Counsel. In response to that indication I was invited by Mr. Browne on behalf of Mr. Pollock to read a number of identified pages of the transcript of the evidence of Mr. Cranston himself. Mr. Cranston did not give evidence at the trial before me. The particular pages of the transcript of the evidence of Mr. Cranston which I was invited to read were those numbered, in the bundle used at the trial before me, 1224 to 1258, 1308 to 1310 and 1330 to 1340. On page 1224 of the transcript Mr. Cranston explained that he started to work at the Club about three weeks before 1 August 1998. He then referred to an incident which, from the rather brief description which he gave of it, could be the incident in which Mr. Priestman was involved. Mr. Cranston proceeded to give an account of the incident involving Mr. Cook on 24 July 1998. Mr. Cranston's version was that it was Mr. Pollock who told Mr. Cook that he was barred and that he, Mr. Cranston, was not present when that was said. Mr. Cranston said that he was called over by another doorman who enquired whether Mr. Cook was the person with whom Mr. Cranston had had the dispute the week before. From that point the account which Mr. Cranston gave in evidence at the Crown Court was similar to that of Mr. Mattis and Mr. Cook, save that Mr. Cranston attributed some insulting words to Mr. Cook. Each of Mr. Mattis, Mr. Cook and Mr. Cranston in their respective accounts agree that Mr. Cranston did not actually use any violence towards either Mr. Cook or Mr. Mattis.
27. There was also put in evidence a videotape which was a composite of recordings made on the night of 31 July – 1 August 1998 by closed-circuit television cameras installed in Woolwich by the local authority. The recordings included some footage of the front of the Club just prior to midnight on 31 July 1998. That showed, amongst other things, a large black gentleman, identified by Mr. Freeman as Mr. Cranston, appearing to control entry to the Club and otherwise to act as a doorman.
28. In the light of the evidence to which I have referred I am completely satisfied that, notwithstanding the denials of Mr. Pollock, he did employ Mr. Cranston as a doorman from some time prior to about 17 July 1998. I am further satisfied that Mr. Cranston was working as a doorman at the Club on the night of 31 July – 1 August 1998. Not the least compelling evidence in relation to the latter is that of Mr. Freeman of Mr. Pollock's attempts to persuade his staff to lie to the police about it.
29. I am also satisfied that the incident involving Mr. Priestman early on 18 July 1998 took place and that the account which I was given of that incident by Mr. Priestman was in all material respects accurate.
30. I find that Mr. Cranston did seek to exclude Mr. Cook from the Club on the night of 24 July 1998. While there are differences between the accounts of what happened on that occasion given by Mr. Mattis and Mr. Cook, in particular as to the precise role of Mr. Pollock, having regard to the evidence of Mr. Cranston given at his trial that it was Mr. Pollock who gave the instruction that Mr. Cook should be barred, and in the light of the fact that Mr. Mattis was less directly involved in the confrontation with Mr. Cranston and thus probably had a better overall appreciation of exactly what was going on on that occasion, I find that the account given by Mr. Mattis both in his statement to the police and in his evidence at the trial before me is in substance correct and, in particular, that it was as a result of an instruction given by Mr. Pollock that Mr. Cranston sought to bar Mr. Cook.

Misconduct on the part of Mr. Cranston prior to 31 July 1998

31. I have already indicated that I accept the evidence that on 18 July 1998 Mr. Cranston bodily removed Mr. Priestman from where he had been at the bar of the Club after seeking to insist that he drink up and that I accept the evidence of Mr. Mattis as to the episode involving Mr. Cook on 24 July 1998.

Mr. Pollock's knowledge of misconduct on the part of Mr. Cranston prior to 31 July 1998

32. Mr. Browne, on behalf of Mr. Pollock, adopting a realistic approach, did not seek seriously to suggest that I should not find that the incidents on 18 and 24 July 1998 did not occur or that the accounts of those incidents which I have indicated that I accept should not be accepted. He did, however, strongly submit that there was no satisfactory evidence that Mr. Pollock was aware that Mr. Cranston had behaved as I have found that he did either on 18 July 1998 or on 24 July 1998. I reject that submission. While in the respects which I have indicated I found Mr. Oligbo to be unsatisfactory as a witness, I am satisfied that before me he told the truth and that the evidence which he gave to me orally and in his witness statement dated 6 September 2002 as modified by his oral evidence was in substance accurate. In particular I accept the evidence of Mr. Oligbo that, having become aware of the incident involving Mr. Priestman, he did speak to Mr. Pollock about Mr. Cranston's conduct and express the view that Mr. Cranston could be dangerous. I also accept the evidence of Mr. Oligbo to me that he drew to the attention of Mr. Pollock that Mr. Cranston was not licensed to act as a doorman at the Club. Mr. Freeman I found to be an impressive witness and, subject to his correction of an error in his witness statement as to the date upon which he left the employ of Mr. Pollock, I accept his evidence without reservation. In particular I find that Mr. Freeman expressed to Mr. Pollock concerns about Mr. Cranston's attitude to customers and the view that Mr. Cranston was a bully. I accept the evidence of Mr. Freeman that the response of Mr. Pollock to that expression of views was Mr. Cranston had a reputation and that the door was weak. I find that by that response Mr. Pollock was indicating that far from being concerned about Mr. Cranston's approach, he wished to employ someone as a doorman who could be relied upon to intimidate customers. I accept the evidence of Mr. Oligbo that Mr. Pollock told Mr. Cranston that he wanted him to "deal" with Mr. Fitzgerald. I find that by that instruction Mr. Pollock meant, and Mr. 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 which he might give to Mr. Fitzgerald or any of his companions. I hold that the incident on 18 July 1998 involving Mr. Priestman, who on that occasion was with Mr. Fitzgerald, was provoked by Mr. Cranston in compliance with the instruction from Mr. Pollock to which I have referred. Thus Mr. Pollock not merely knew of the incident after it had occurred and knew of the concerns of other members of his staff about it, he actually intended before it occurred that some incident of that general nature should occur involving Mr. Fitzgerald or his companions. On the evidence of Mr. Cook and Mr. Mattis I find that Mr. Pollock was present throughout at least the majority of the incident involving Mr. Cook on 24 July 1998 and observed how Mr. Cranston dealt with Mr. Cook.

The events of 31 July and 1 August 1998

33. The incident involving Mr. Cook on 24 July 1998, as to which I have indicated my findings of fact, was a precursor to the attack on Mr. Mattis on 1 August 1998 in the sense that it was provided the ostensible reason for Mr. Cranston to accost Mr. Cook on 1 August 1998, which event set in train the circumstances which led ultimately to Mr. Cranston stabbing Mr. Mattis with such tragic consequences.
34. Although, as I have indicated, I was invited to consider part of the transcript of the evidence of Mr. Cranston at his criminal trial in which he set out his account of the events leading up to the stabbing of Mr. Mattis, in fact there appeared to be little difference between the parties before me as to what those events were. I should make clear that, while I have read those parts of the transcript of Mr. Cranston's evidence which I was invited to read, and have noted his various explanations and exculpatory statements, in particular that he was first accosted by Mr. Cook, and then attacked by Mr. John Loft and subsequently by Mr. Cook, I consider that it is only realistic, given the context in which Mr. Cranston's evidence was given, to reject that evidence insofar as it is inconsistent with the evidence of Mr. Mattis, Mr. Cook, Mr. Cook's girlfriend, Miss Angela Heneghan, and, so far as it is relevant, given their absence from the critical scenes at material times, Mr. Freeman and Mr. Oligbo. With one important qualification in relation to the evidence of Mr. Cook, I accept the evidence of these witnesses as to what happened on the night of 31 July – 1 August 1998. I also accept the evidence of the videotape to which I have already referred in relation to the timings of events which it recorded, in particular when Mr. Cranston left the Club on 1 August 1998, the time by which Mr. Mattis was shown as having been stabbed, and as to the numbers of persons who followed Mr. Cranston out of the Club.
35. Since the evidence as to what happened which I have indicated I accept is broadly consistent I think that it is enough, by and large, to set out my findings as to what happened without crediting the contribution made to those findings by any particular witness. I shall, however, comment upon some differences in the evidence and indicate my findings.
36. Mr. Mattis arrived at the Club at about 11.15 p.m. on 31 July 1998 in company with a number of others, none of whom has previously featured by name in this judgment. One of these was Mr. Michael Keyes. Mr. Mattis and those with him were all admitted to the Club without difficulty and nothing untoward occurred until after Mr. Cook had arrived at the Club in company with Miss Heneghan and others including Mr. Paul Fitzgerald and Mr. John Loft. Mr. Cook and the party with him arrived sometime after about 12.30 a.m. on 1 August 1998. Given the nature of the incident to which I am about to refer and the timings on the closed-circuit television recordings which I have already mentioned I am inclined to the view that Mr. Cook and his party probably arrived at the Club rather after 1.00 a.m., but that detail is not particularly important.
37. Mr. Cook and his party entered the Club and were seen by Mr. Pollock, who raised no objection to any of them entering.
38. As Mr. Cook and his party moved through the door from the foyer of the Club into the area in which the bar was situated, Mr. Cranston was in a passage behind some seating, leaning on the back of a seat talking to a woman. He saw Mr. Cook enter. At this point Mr. Mattis was in the Gentleman's lavatory and was unaware that Mr. Cook had entered the Club.
39. Mr. Cranston said to Mr. Cook words to the effect that Mr. Cook was not allowed in the Club. Mr. Cranston then grabbed Mr. Cook round the neck and pulled his face close to that of Mr. Cranston. Miss Heneghan had entered the bar area behind Mr. Cook and behind her was Mr. Loft. When Mr. Cranston grabbed Mr. Cook round the neck Mr. Loft said words to the effect "Leave him alone. He has not done anything." At that point Mr. Cranston released his grip on Mr. Cook and turned his attention towards Mr. Loft. Mr. Loft felt it expedient then to retire in the direction of the Ladies lavatory, which was behind him. However, Mr. Cranston pursued Mr. Loft. As he did so he removed an item from his pocket and hit Mr. Loft on the back of the head with it. The exact nature of the item with which Mr. Cranston hit Mr. Loft is unclear. It may have been a knuckleduster, or perhaps a cosh. Mr. Loft fell to the ground.
40. Having felled Mr. Loft Mr. Cranston refocused his attention on Mr. Cook. He ran towards Mr. Cook and struck him also in the face with whatever the object was he had used to strike Mr. Loft. Mr. Cook fell to the ground.
41. It was as Mr. Cranston was running to hit Mr. Cook that Mr. Mattis emerged from the lavatory. He saw Mr. Cranston hit Mr. Cook and he then grabbed Mr. Cranston round the waist to try to pull him away from Mr. Cook. Mr. Mattis held onto Mr. Cranston for only a short time, a few seconds, and then turned to assist Mr. Cook to his feet.
42. The evidence as to exactly what happened next is somewhat indefinite. However, it is clear that the attacks of Mr. Cranston on Mr. Loft and Mr. Cook provoked a negative reaction amongst other persons present. Whatever precisely happened, the general picture is that a number of persons gathered round Mr. Cranston and he received a number of blows, including at least one from a glass object which was broken over his head.
43. Mr. Cranston was able to extricate himself from the attentions of those gathered round him and deemed it prudent to retire towards the foyer at the front of the Club. He was followed by a considerable press of people, which no doubt included the merely curious as well as possibly some or all of those who had sought to inflict blows upon Mr. Cranston.
44. In the circumstances Mr. Cranston felt that it was sensible not to cease his retreat at the foyer of the Club, but actually to leave the premises of the Club. The closed-circuit television footage suggests that this happened at about 1.21 a.m.
45. As Mr. Cranston left the Club he was followed by Mr. Cook and, so the closed-circuit television footage shows, a number of others. The footage is somewhat indistinct, but it appears that the total number of those who followed Mr. Cranston was four or five. Out of that number two may have been Mr. Mattis and Mr. Keyes, who left the Club in circumstances to which I shall come.
46. When asked in cross-examination why he pursued Mr. Cranston out of the Club, Mr. Cook said that it was often the case that in the vicinity of the Club there were police officers and he wished to seek a police officer so that Mr. Cranston could be arrested for the assault on Mr. Cook in the Club. Mr. Cook was also asked why he did not simply enquire of Mr. Pollock or someone else at the Club as to the name and address of Mr. Cranston. He said that he wanted the matter dealt with there and then and did not want to wait. Mr. Cook did not find a police officer in the vicinity of the Club, but, on his own evidence, pursued Mr. Cranston a distance shown on a map put in evidence as something of the order of 500 metres to a point near where it appears Mr. Cranston at that time lived, in a flat in Sandham Point on the Armstrong Estate, off Vincent Road, Woolwich. At that stage Mr. Cook apparently lost Mr. Cranston and gave up the chase. Others of the pursuers had given up the hunt earlier, it seems.
47. I reject the evidence of Mr. Cook that he pursued Mr. Cranston out of the Club in the hope of finding a police officer who could arrest Mr. Cranston. Had he simply been looking for a police officer he would have abandoned the pursuit as soon as it became apparent that no police officer was at hand. The reality, I am sure, is that Mr. Cook, and some, at least, of those who followed him out of the Club, were seeking to catch Mr. Cranston in order to complete to their satisfaction the summary administration of physical punishment to Mr. Cranston which had begun before Mr. Cranston had been able to escape from the Club.
48. Miss Heneghan noticed that Mr. Cook had set off in pursuit of Mr. Cranston and was concerned about that. She shared her concerns with Mr. Mattis. I should make clear that there is no suggestion that Mr. Mattis was involved in any of the events on 1 August 1998 which I have described other than that of which he himself spoke in his evidence, namely grabbing Mr. Cranston round the waist after he had hit Mr. Cook. Mr. Mattis and his friend Mr. Keyes, set out to look for Mr. Cook. They found him returning in the direction of the Club after they had gone about 200 metres.
49. Mr. Mattis in his evidence thought that he, Mr. Keyes and Mr. Cook then walked back to the Club and were joined outside the doors of the Club by Miss Heneghan and others of Mr. Cook's party. Mr. Cook's evidence and that of Miss Heneghan was that she and other members of Mr. Cook's party in fact set off from the Club and met Mr. Cook, Mr. Mattis and Mr. Keyes as they were returning towards the Club. Although it probably does not matter which of these versions is correct, I prefer that of Mr. Cook and Miss Heneghan. Whether Mr. Mattis, Mr. Cook and Mr. Keyes returned to the front of the Club before meeting Miss Heneghan and other members of Mr. Cook's party and then they all set off back in the direction from which they had just come, or whether Mr. Mattis, Mr. Cook and Mr. Keyes were met as they returned in the direction of the Club, there came a time, which from the timings on the closed-circuit television recordings was after about 1.36 a.m. but before about 1.44 a.m., when a group including Mr. Mattis, Mr. Cook and Miss Heneghan was assembled in the vicinity of a street corner about 100 metres from the Club discussing what to do next. The conclusion was that they should all go to their respective homes. At that point Mr. Cranston came running round a corner towards the group. He in fact had a knife in his hand. Mr. Cook and Miss Heneghan said in evidence that they each had seen the knife. Mr. Mattis did not say that he had seen it. The group split up, each other than Mr. Mattis running in a different direction. Mr. Mattis remained more or less where he was but adopted a defensive posture with his hands over his head in anticipation of a blow. In fact Mr. Cranston grabbed Mr. Mattis and pulled him forward, at the same time stabbing him in the upper left back. As he struck the critical blow Mr. Cranston said something along the lines, "I'll teach you to fuck with me." Having stabbed Mr. Mattis Mr. Cranston set off in brief pursuit of the other members of the group. First he chased Mr. Cook for a short distance, before abandoning that pursuit and seeming to chase after Miss Heneghan. Ultimately he ran off without inflicting any injury on anyone who had earlier been in the Club other than Mr. Mattis. However, as he ran off Mr. Cranston slashed with the knife a young man who had nothing to do with anything which had happened earlier, Mr. Richard Mahoney. Mr. Mahoney had been in a chip shop and on emerging had seen Mr. Cranston. He had heard others shouting that Mr. Cranston had stabbed someone. Mr. Mahoney followed Mr. Cranston to see where he was going. He caught up with Mr. Cranston and told him why he was following him. At that point Mr. Cranston struck Mr. Mahoney with a knife.
50. Each of Mr. Mattis, Mr. Cook and Miss Heneghan described Mr. Cranston as he came running up and attacked Mr. Mattis as acting like a mad man.
51. A question arises as to when and where Mr. Cranston obtained the knife with which he stabbed Mr. Mattis. Mr. Browne submitted that I should find that Mr. Cranston returned to his flat and there armed himself with one knife, or perhaps, on Mr. Cranston's own evidence at his trial, two knives. Mr. Rose submitted that such a finding was contrary to the evidence of Miss Ranjit Bridge, the girlfriend of Mr.Cranston and with whom he lived at the time. There was put before me pursuant to the provisions of Civil Evidence Act 1995 s.2(1)(a) a statement of Miss Bridge dated 1 August 1998 in which she said that she stayed in her flat all of the relevant evening, fell asleep around 11.30 p.m. to midnight and heard nothing further until she was woken by Mr. Cranston some time after 1.30 a.m. when he banged on the door of the flat. According to Miss Bridge, Mr. Cranston thereafter remained in the flat until he was arrested by police officers some minutes later. Mr. Rose invited me to draw the inference that, as Miss Bridge had not woken earlier, Mr. Cranston had not returned to the flat earlier. Miss Bridge pointed out in her statement that Mr. Cranston did not have his keys to the flat to let himself in otherwise he would have used them. Mr. Browne invited me to reject the evidence of Miss Bridge, which was not tested by cross-examination, as likely to have been fabricated in order to lower her profile in relation to the serious assaults Mr. Cranston had committed on Mr. Mattis and Mr. Mahoney. Mr. Browne submitted that, if Mr. Cranston had had a knife at the time he was involved in the fracas at the Club, the probability was that he would then have used it, or he would have used it at least to deter those pursuing him from the Club. Mr. Browne thus submitted that it was likely that Mr. Cranston went somewhere after he left the Club and after the pursuit of him was abandoned and armed himself. Given that he was chased to very close to his flat the probability was that it was there that he went. There is much force in these submissions. I am satisfied that in fact Mr. Cranston did go somewhere and arm himself with the knife which he used to stab Mr. Mattis. That is to say, I am satisfied that, if he had had the knife with him in the Club, he would have used it at least to deter pursuers, even if in the confined space of the Club he could not deploy the knife. It probably matters not exactly where Mr. Cranston obtained the knife, but the obvious place would be from his own flat.

Vicarious Liability

52. As I have already indicated, the first way in which Mr. Rose submitted that Mr. Pollock was liable to Mr. Mattis in respect of the injuries inflicted upon him by Mr. Cranston was because, so it was said, Mr. Pollock was vicariously liable for the assault committed by Mr. Cranston. Mr. Rose drew to my attention the recent decision of the House of Lords in Lister v. Hesley Hall Ltd. [2002] 1 AC 215 and submitted that on a proper understanding of that case what had been decided, by way of clarification of the law as previously understood, was that all that was necessary in order for an employer to be liable for a tort committed by a person who was his employee, was that there should be a close connection between the duties which the relevant employee was employed to perform and the tort committed by the employee. Mr. Rose submitted that on the facts of the present case the requisite close connection existed. Mr. Browne, on the other hand, submitted that what was decided in Lister v. Hesley Hall Ltd. was that there were two elements to be satisfied if an employer was to be held liable for the torts of his employee. One was that identified by Mr. Rose, but the second was that the employer should have owed some duty himself to the alleged victim of the tort, that he should have entrusted the performance of that duty to the relevant employee, and the operative tort should have been committed in the course of the ostensible performance by the employee of the employer's duty to the alleged victim. Mr. Rose countered that the so-called second element for which Mr. Browne contended was not in truth a second element, but simply a recitation of factors relevant to a determination of the question whether the connection between the scope of the employment of the relevant employee and the wrongdoing in issue was sufficiently close for it to be just and fair for the employer to be liable in law to the alleged victim. The difference in the analyses for which Mr. Rose and Mr. Browne respectively contended could be of significance on the facts of this case if I were persuaded that at the time Mr. Cranston stabbed Mr. Mattis Mr. Pollock did not owe any duty himself to Mr. Mattis. In order to reach a conclusion as to whether the analysis of the decision in Lister v. Hesley Hall Ltd. for which Mr. Rose contended or that for which Mr. Browne contended is well-founded it is necessary to consider in some detail the speeches in that case.
53. Lister v. Hesley Hall Ltd. was a case in which the issue was whether the operators of a boarding house attached to a school were vicariously liable for criminal sexual assaults committed on pupils resident in the boarding house by the warden of the house. It was held that the operators, as employers of the warden, were so liable.
54. The first speech delivered in Lister v. Hesley Hall Ltd. was that of Lord Steyn. The starting point of Lord Steyn's consideration of the issue before the House in that case was the test of vicarious liability formulated in the first edition of Salmond on Torts, 1907. Lord Steyn summarised that test at paragraph 15 of his speech in this way:-

"Salmond said that a wrongful act is deemed to be done by a "servant" in the course of his employment if "it is either (a) a wrongful act authorised by the master, or (b) a wrongful and unauthorised mode of doing some act authorised by the master"."

55. Lord Steyn proceeded to consider a number of earlier decisions before coming in paragraph 20 of his speech to the decision in Rose v. Plenty [1976] 1 WLR 141 and to some observations of Scarman LJ, as he then was, at pages 147-148. After that citation Lord Steyn went on:-

"If this approach to the nature of employment is adopted, it is not necessary to ask the simplistic question whether in the cases under consideration the acts of sexual abuse were modes of doing authorised acts. It becomes possible to consider the question of vicarious liability on the basis that the employer undertook to care for the boys through the services of the warden and that there is a very close connection between the torts of the warden and his employment. After all, they were committed in the time and on the premises of the employers while the warden was also busy caring for the children."

That passage, in which Lord Steyn in terms indicated a basis upon which it was possible to consider vicarious liability that involved the two elements of the duty of the employer to the victim of the tort and the close connection between the tort and the employment of the employee who in fact committed the tort, was relied upon strongly by Mr. Browne in support of his analysis, and it does indeed on its face support it. Lord Hutton agreed with Lord Steyn's speech without adding anything of his own, while Lord Hobhouse of Woodborough delivered a substantive speech of his own at the end of which he expressly adopted the reasoning of Lord Steyn in addition.

56. Mr. Browne also drew attention to the following passages in the speech of Lord Steyn which he submitted supported the analysis of Lister v. Hesley Hall Ltd. for which he contended:-

"24. It is useful to consider an employer's potential liability for non-sexual assaults. If such assaults arise directly out of circumstances connected with the employment vicarious liability may arise: see F D Rose "Liability for an Employee's Assaults" (1977) 40 MLR 420, 432-433. Butler-Sloss LJ considered this analogy. In the critical passage of her judgment, which I have already quoted in full, she stated, at p 591:

"Acts of physical assault may not be so easy to categorise, since they may range, for instance, from a brutal and unprovoked assault by a teacher to forceful attempts to defend another pupil or the teacher himself. But in the field of serious sexual misconduct, I find it difficult to visualise circumstances in which an act of a teacher can be an unauthorised mode of carrying out an authorised act, although I would not wish to close the door on the possibility."

If I correctly understand this passage, it appears to be indicating that there could not be vicarious liability by an employer for a brutal assault or serious sexual misconduct whatever the circumstances. That appears to be a case of saying "The greater the fault of the servant, the less the liability of the master": Morris v. C W Martin & Sons Ltd. [1966] 1 QB 716, 733 per Diplock LJ. A better approach is to concentrate on the relative closeness of the connection between the nature of the employment and the particular tort.

25. In my view the approach of the Court of Appeal in Trotman v. North Yorkshire County Council [1999] LGR 584 was wrong. It resulted in the case being treated as one of the employment furnishing a mere opportunity to commit the sexual abuse. The reality was that the county council were responsible for the care of the vulnerable children and employed the deputy headmaster to carry out that duty on its behalf. And the sexual abuse took place while the employee was engaged in duties at the very time and place demanded by his employment. The connection between the employment and the torts was very close. I would overrule Trotman v. North Yorkshire County Council …

28. Employing the traditional methodology of English law, I am satisfied that in the case of the appeals under consideration the evidence showed that the employers entrusted the care of the children in Axeholme House to the warden. The question is whether the warden's torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. On the facts of the case the answer is yes. After all, the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in Axeholme House. Matters of degree arise. But the present cases clearly fall on the side of vicarious liability."

In these passages the two elements for which Mr. Browne contended were perhaps less clearly identified as being separate, and rather greater emphasis was given to the issue of the closeness of the connection between the nature of the employment and the particular tort. However, the responsibility of the employer to the victims of the torts was specifically referred to both in paragraph 25 and in paragraph 28. The context suggests that the references to "the employment" were intended to designate that which the employee was employed to do which was relevant to the discharge by the employer of whatever his duty was to the victim of the tort, rather than some more general reference to the nature of the employee's obligations owed to the employer.

57. Lord Clyde delivered a speech which did not refer to that of Lord Steyn. He too, at paragraph 36, took as his starting point the formulation of the test of vicarious liability in the first edition of Salmond on Torts. He drew attention to the text which followed the test as summarised in the speech of Lord Steyn, namely:-

"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."

Lord Clyde went on:-

"37. That latter observation seems to me to be of particular importance. An act of deliberate wrongdoing may not sit easily as a wrongful mode of doing an authorised act. But recognition should be given to the critical element in the observation, namely the necessary connection between the act and the employment. The point is made by Salmond even in his first edition, at p 84 where he states: "On the other hand, if the unauthorised and wrongful act of the servant is not so connected with the authorised act as to be a mode of doing it, but is an independent act, the master is not responsible." What has essentially to be considered is the connection, if any, between the act in question and the employment. If there is a connection, then the closeness of that connection has to be considered. The sufficiency of the connection may be gauged by asking whether the wrongful actings can be seen as ways of carrying out the work which the employer had authorised."

At this stage in his speech Lord Clyde was plainly concentrating on the question of the closeness of the connection between what the employee has been employed to do and the tort. He had not in terms referred at all to the issue of the responsibility of the employer to the victim of the tort.

58. At paragraph 41 of his speech Lord Clyde said that:-

"What is or is not included within the scope of the employment is very much a matter of fact, and very many of the reported cases are decisions which have turned essentially upon their own circumstances. Three matters however which are relevant to the present case deserve consideration."

The first of those three matters was:-

"that in considering the scope of the employment a broad approach should be adopted."

which had the consequence that

"it becomes inappropriate to concentrate too closely upon the particular act complained of. Not only do the purpose and the nature of the act have to be considered but the context and the circumstances in which it occurred have to be taken into account. The particular act of lighting a cigarette and throwing away the match, if viewed narrowly, may not in itself be an act which an employee was employed to do. But viewed more broadly it can be seen as incidental to and within the scope of his employment."

The second matter was:-

"while consideration of the time at which and the place at which the actings occurred will always be relevant, they may not be conclusive. That an act was committed outside the hours of employment may well point to it being outside the scope of the employment. But that the act was done during the hours of the employment does not necessarily mean that it was done within the scope of the employment. So also the fact that the act in question occurred during the time of the employment and in the place of the employment is not enough by itself. There can be cases where the place where the wrongful act was committed can be said to have been one where the employee was no longer to treated as within the scope of his employment, such as Kirby v. National Coal Board 1958 SC 514, where the mine worker retired from the working face to the waste and was no longer acting in the scope of his employment, or the various cases on travel, such as Williams v. A & W Hemphill Ltd. 1966 SC(HL) 31, where a deviation from an intended route may or may not take the employee outwith the scope of his employment. The acting may be so unconnected with the employment as to fall outside any vicarious liability. Where the employer's vehicle is used solely for a purpose unconnected with the employer's business, when, to use the language of Parke B in Joel v. Morison (1834) 6 C & P 501, 503 the driver is "going on a frolic of his own", the employer will not be liable. Acts of passion and resentment (as in Deatons Pty Ltd. v. Flew (1949) 79 CLR 370) or of personal spite (as in Irving v. Post Office [1987] IRLR 289) may fall outside the scope of the employment. While use of a handbasin at the end of the working day may be an authorised act, the pushing of the basin so as to cause it to move and startle a fellow-employee may be and independent act not sufficiently connected with the employment: Aldred v. Nacanco [1987] ICR 292."

The third matter identified by Lord Clyde was:-

"while the employment enables the employee to be present at a particular time at a particular place, the opportunity of being present at particular premises whereby the employee has been able to perform the act in question does not mean that the act is necessarily within the scope of the employment. In order to establish a vicarious liability there must be some greater connection between the tortious act of the employee and the circumstances of his employment than the mere opportunity to commit the act which has been provided by the access to the premises which the employment has afforded: Heasmans v. Clarity Cleaning Co. Ltd. [1987] 949."

59. None of the matters to which Lord Clyde called attention in the passages from his speech which I have just set out mentioned in terms any obligation or responsibility of the employer to the victim of the tort. However, immediately after the paragraph in which he set out the third of the matters which he wished to mention Lord Clyde went on, at paragraph 46 of his speech:-

"Among the multifarious kinds of employment one situation relevant to the present case is where the employer has been entrusted with the safekeeping or the care of some thing or some person and he delegates that duty to an employee. In this kind of case it may not be difficult to demonstrate a sufficient connection between the act of the employee, however wrong it may be, and the employment."

Lord Clyde thus seemed to place his emphasis on the question of a duty owed by the employer to the victim of the tort going to the issue whether there was a sufficiently close connection between the employment and the tort to give rise to vicarious liability, rather than being a separate element needing to be satisfied before vicarious liability could arise.

60. Before leaving the speech of Lord Clyde I should mention two other passages to which my attention was drawn:-

"48. Cases which concern sexual harassment or sexual abuse committed by an employee should be approached in the same way as any other case where questions of vicarious liability arise. I can see no reason for putting them into any special category of their own…. The Canadian case of Bazley v. Curry 174 DLR (4^th) 45 concerned vicarious liability for acts of sexual abuse carried out by an employee of a children's foundation who had been engaged to act as a parent-figure caring for emotionally troubled children in a children's home. The careful and comprehensive discussion of the problem by McLachlin J was presented in the context of policy considerations, but the essence of the decision seems to me to lie in the recognition of the existence of a sufficient connection between the acts of the employee and the employment. This in turn was explored by reference to various factors by reference to which the strength of the connection can be established. In that case vicarious liability was held to exist. On the other hand in Jacobi v. Griffiths 174 DLR (4^th) 71 vicarious liability was not established. In that case the acts, with one minor exception, took place in the employee's home outside working hours and away from the club which was the principal place of employment. That the club had provided an opportunity to establish a friendship with the children did not constitute a sufficient connection. These two decisions seem to be consistent with the traditional approach recognised in this country."

61. Lord Hobhouse of Woodborough expressed his approach characteristically trenchantly in his speech. It is appropriate first to cite two passages:-

"54. What these cases and Trotman's case in truth illustrate is a situation where the employer has assumed a relationship to the plaintiff which imposes specific duties in tort upon the employer and the role of the employee (or servant) is that he is the person to whom the employer has entrusted the performance of those duties. These cases are examples of that class where the employer, by reason of assuming a relationship to the plaintiff, owes to the plaintiff duties which are more extensive than those owed by the public at large and, accordingly, are to be contrasted with the situation where a defendant is simply in proximity to the plaintiff so that it is foreseeable that his acts may injure the plaintiff or his property and a reasonable person would have taken care to avoid causing such injury…

55. The classes of persons or institutions that are in this type of special relationship to another human being include schools, prisons, hospitals and even, in relation to their visitors, occupiers of land. They are liable if they themselves fail to perform the duty which they consequently owe. If they entrust the performance of that duty to an employee and that employee fails to perform the duty they are still liable. The employee, because he has, through his obligations to his employers, adopted the same relationship towards and come under the same duties to the plaintiff, is also liable to the plaintiff for his own breach of duty. The liability of the employers is a vicarious liability because the actual breach of duty is that of the employee. The employee is a tortfeasor. The employers are liable for the employee's tortious act or omission because it is to him that the employers have entrusted the performance of their duty. The employers' liability to the plaintiff is also that of a tortfeasor. I use the word "entrusted" in preference to the word "delegated" which is commonly, but perhaps less accurately, used. Vicarious liability is sometimes described as a "strict" liability. The use of this term is misleading unless it is used just to explain that there has been no actual fault on the part of the employers. The liability of the employers derives from that relationship and their choosing to entrust the performance of those duties to their servant. Where these conditions are satisfied, the motive of the employee and the fact that he is doing something expressly forbidden and is serving only his own ends does not negative the vicarious liability for his breach of the "delegated" duty."

62. In the passages from his speech which I have quoted in the preceding paragraph of this judgment Lord Hobhouse of Woodborough was plainly addressing a particular situation in which vicarious liability can arise, namely where by virtue of the particular circumstances of the victim as resident or present in a school or a prison or a hospital or on premises belonging to another he is owed duties by those operating the school, prison, or hospital, or occupying the relevant land. That particular situation seems to have been intended simply as an example, for in the very next paragraph of his speech Lord Hobhouse indicated that:-

"The duty which I have described is also to be found in relation to the loss of or damage to goods."

At paragraph 57 of his speech Lord Hobhouse stated that the relationship between solicitors and their client was equally a special relationship for the purposes of his analysis, as were various other cases, all of which could be said to:-

"illustrate the general proposition that, where the defendant has assumed a relationship to the plaintiff which carries with it a specific duty towards the plaintiff, the defendant is vicariously liable in tort if his servant, to whom the performance of that duty has been entrusted, breaches that duty."

63. However, in my judgment it is also clear from the express agreement indicated by Lord Hobhouse with the speech of Lord Steyn that Lord Hobhouse considered that his analysis of a duty owed by an employer to the victim of the tort performance of which was entrusted to the employee who committed the tort being the correct modern understanding of the foundation for vicarious liability was not something different from the views expressed by Lord Steyn.
64. The fifth member of the House of Lords involved in the decision in Lister v. Hesley Hall Ltd. was Lord Millett. At paragraph 65 of his speech, in what seems to me to be an important passage, he said this:-

"Vicarious liability is a species of strict liability. It is not premised on any culpable act or omission on the part of the employer; an employer who is not personally at fault is made legally answerable for the fault of his employee. It is best understood as a loss-distribution device: (see Cane's edition of Atiyah's Accidents, Compensation and the Law, 6^th ed (1999), p 85 and the articles cited by Atiyah in his monograph on Vicarious Liability in the Law of Torts, at p 24. The theoretical underpinning of the doctrine is unclear. Glanville Williams wrote ("Vicarious Liability and the Master's Indemnity"(1957) 20 MLR 220, 231):

"Vicarious liability is the creation of many judges who have had different ideas of its justification or social policy, or no idea at all. Some judges may have extended the rule more widely, or confined it more narrowly than its true rationale would allow; yet the rationale, if we can discover it, will remain valid so far as it extends."

Fleming observed (The Law of Torts, 9^th ed, p 410) that the doctrine cannot parade as a deduction from legalistic premises. He indicated that it should be frankly recognised as having its basis in a combination of policy considerations, and continued: "Most important of these is the belief that a person who employs others to advance his own economic interest should in fairness be placed under a corresponding liability for losses incurred in the course of the enterprise…" Atiyah, Vicarious Liability in the Law of Torts wrote to the same effect. He suggested, at p 171: "The master ought to be liable for all those torts which can fairly be regarded as reasonably incidental risks to the type of business he carries on" These passages are not to be read as confining the doctrine to cases where the employer is carrying on business for profit. They are based on the more general idea that a person who employs another for his own ends inevitably creates a risk that the employee will commit a legal wrong. If the employer's objectives cannot be achieved without a serious risk of the employee committing the kind of wrong which he has in fact committed, the employer ought to be liable. The fact that his employment gave the employee the opportunity to commit the wrong is not enough to make the employer liable. He is liable only if the risk is one which experience shows is inherent in the nature of the business."

65. The passage which I have just quoted from the speech of Lord Millett indicates that the conceptual justification for the imposition of vicarious liability upon an employer is that the tort of the employee has been committed in the course of activities intended to further the economic interests of the employer. In other words, it is in the course of activities intended to further the economic interests of the employer that the employee will have committed whatever is the tort in respect of which the employer is vicariously liable. That is likely to mean that some relationship has been established between the employer and the victim of the tort. That would be so if the victim was a customer of the employer, or the employer was charged with providing care or some other service to the victim, whether under a contract or not. It may be less obvious where, for example, personal injury is caused to the victim by the negligent driving by an employee of his employer's vehicle, but even in that case it may be possible to analyse the tort in terms of the employer personally owing a duty to the victim to see that care is taken by his employee in the driving of the employer's duty. Consequently, the conceptual analysis of Lord Millett in paragraph 65 of his speech is suggestive of the submission of Mr. Browne as to the basis of the decision in Lister v. Hesley Hall Ltd. and the proper understanding of the speeches of Lord Steyn and Lord Hobhouse, at least, being correct. Against the background of paragraph 65 of the speech of Lord Millett I turn to consider some other passages in his speech to which my attention was drawn.
66. Lord Millett, like other members of the House of Lords, considered the test of vicarious liability formulated in the first edition of Salmond on Torts. Having done so he said, at paragraph 70 of his speech:-

"But the precise terminology is not critical. The Salmond test, in either formulation, is not a statutory definition of the circumstances which give rise to liability, but a guide to the principled application of the law to diverse factual situations. What is critical is that attention should be directed to the closeness of the connection between the employee's duties and his wrongdoing and not to verbal formulae. This is the principle on which the Supreme Court of Canada recently decided the important cases of Bazley v. Curry 174 DLR (4^th) 45 and Jacobi v. Griffiths 174 DLR (4^th) 71 which provide many helpful insights into this branch of the law and from which I have derived much assistance."

67. Having considered a number of previous decisions Lord Millett stated his conclusions.

"79. So it is no answer to say that the employee was guilty of intentional wrongdoing, or that his act was not merely tortious 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. The cases show that where an employer undertakes the care of a client's property and entrusts the task to an employee who steals the property, the employer is vicariously liable. This is in accordance not only with principle but with the underlying rationale if Atiyah has correctly identified it. Experience shows that the risk of theft by an employee is inherent in a business which involves entrusting the custody of a customer's property to employees. But the theft must be committed by the very employee to whom the custody of the property is entrusted. He does more than make the most of an opportunity presented by the fact of his employment. He takes advantage of the position in which the employer has placed him to enable the purposes of the employer's business to be achieved. If the boys in the present case had been sacks of potatoes and the defendant, having been engaged to take care of them, had entrusted their care to one of its employees, it would have been vicariously liable for any criminal damage done to them by the employee in question, though not by any other employee. Given that the employer's liability does not arise from the law of bailment, it is not immediately apparent that it should make any difference that the victims were boys, that the wrongdoing took the form of sexual abuse, and that it was committed for the personal gratification of the employee.

80. Employers have long been held vicariously liable in appropriate circumstances for assaults committed by their employees. Clearly an employer is liable where he has placed the employee in a situation where he may be expected on occasions to have to resort to personal violence: see Dyer v. Munday [1895] 1 QB 742, where the employer was held vicariously liable for a criminal assault committed by an employee while attempting to repossess his employer's property. Equally clearly the employer is not liable for an assault by his employee on a customer merely because it was the result of a quarrel arising out of his employment: see Warren v. Henlys Ltd. [1948] 2 All ER 935, where a petrol pump attendant assaulted a customer as a result of a dispute over payment. The case was decided partly on the ground that the customer had paid for the petrol and was driving away when he was assaulted, and partly on the ground that he was assaulted because he had threatened to report the attendant to his employer. The reasoning has been criticised, and the better view may be that the employer was not liable because it was no part of the duties of the pump attendant to keep order. Attention must be concentrated on the closeness of the connection between the act of the employee and the duties he is engaged to perform broadly defined.

81. In Deatons Pty. Ltd. v. Flew (1949) 79 CLR 370 the owner of a hotel was held not to be vicariously liable for an unprovoked assault by a barmaid who threw a glass of beer into a customer's face. The ground of decision was that the barmaid was not in charge of the bar – the publican was close at hand – and she did not throw the glass in the course of maintaining discipline or restoring order. In the words of Dixon J, at pp 381-382 it was :

"an act of passion and resentment done neither in furtherance of the master's interests nor under his express or implied authority nor as an incident to or in consequence of anything the barmaid was employed to do. It was a spontaneous act of retributive justice. The occasion for administering it and the form it took may have arisen from the fact that she was a barmaid but the retribution was not within the course of her employment as a barmaid." (My [that is to say, Lord Millett's] emphasis).

In other words, the barmaid's employment gave her the opportunity to wreak some personal vengeance of her own, but that was all; and it was not enough to make her employer liable. Had she 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. If so, then there is no a priori reason why an employer should not be vicariously liable for a sexual assault committed by his employee, though naturally such conduct will not normally be within the scope of his employment.

82. In the present case the warden's duties provided him with the opportunity to commit indecent assaults on the boys for his own sexual gratification, but that in itself is not enough to make the school liable. The same would be true of the groundsman or the school porter. But there was far more to it than that. The school was responsible for the care and welfare of the boys. It entrusted that responsibility to the warden. He was employed to discharge the school's responsibility to the boys. For this purpose the school entrusted them to his care. He did not merely take advantage of the opportunity which employment at a residential school gave him. He abused the special position in which the school had placed him to enable it to discharge its own responsibilities, with the result that the assaults were committed by the very employee to whom the school had entrusted the care of the boys. It is not necessary to conduct the detailed dissection of the warden's duties of the kind on which the Supreme Court of Canada embarked in Bazley v. Curry 174 DLR (4^th) 45 and Jacobi v. Griffiths 174 DLR 71. I would hold the school liable.

83. I would regard this as in accordance not only with ordinary principle deducible from the authorities but with the underlying rationale of vicarious liability. Experience shows that in the case of boarding schools, prisons, nursing homes, old people's homes, geriatric wards, and other residential homes for the young or vulnerable, there is an inherent risk that indecent assaults on the residents will be committed by those placed in authority over them, particularly if they are in close proximity to them and occupying a position of trust."

68. Both Mr. Rose and Mr. Browne brought to my attention two decisions in which the implications of the decision of the House of Lords in Lister v. Hesley Hall Ltd. had been considered. First in time of these decisions was that of Laddie J in Balfron Trustees Ltd. v. Peterson [2001] IRLR 758. The second was the decision of the Court of Appeal in an unreported case, Cercato-Gouveia v. Kyprianou [2001] EWCA Civ 1887.
69. In Balfron Trustees Ltd. v. Peterson Laddie J considered the speeches in Lister v. Hesley Hall Ltd. in some detail. At paragraph 23 of his judgment the learned judge said:-

"In Lister itself, Lord Millett, although agreeing that vicarious liability existed, said that it was "stretching language to breaking-point" to describe the series of deliberate sexual assaults on the claimants committed by the defendant's employee, which lay at the heart of the claim in that case, as merely wrongful and unauthorised modes of the employee performing his duties as employee. If this is right, then it is not the precise terms of the employment, i.e. the detail of the relationship between the defendant employer and the tortfeasor employee, which determines whether there is vicarious liability. Rather it is whether there is vicarious liability which determines whether the wrongful act is to be regarded as having been committed in the course of the employee's employment."

The learned judge then went on:-

"24. If this is so, then in many cases it must be the relationship between the defendant employer and the victim which is a crucial factor in deciding whether the former is liable for the acts of his own employee which has caused damage to the other. It appears to me that this is at the heart of Lister and, because this point is of some importance to the outcome of this application, it is necessary to look with some care at what was said in the latter case."

70. Laddie J then proceeded to consider the speeches in Lister v. Hesley Hall Ltd. at some length.
71. In the course of that consideration the learned judge said, at paragraph 27:-

"If one asks the question "to whom did the employer undertake to care for the boys?" the answer is: the boys themselves. In other words, the terms of the employment become less important than the fact of the employment and the relationship between the victim and the employer becomes central."

72. After further reference to passages in the speeches in Lister v. Hesley Hall Ltd. Laddie J stated his conclusions at paragraph 33 of his judgment:-

"All of these passages emphasise the necessity of identifying the duty or responsibility of the employer to the victim. If such a duty or responsibility exists, the employer cannot avoid liability because it was delegated to an employee who failed to comply with his employer's instructions. Even though the employee's acts are so heinous that they could not reasonably be said to form part of his obligations vis a vis his employer, they are treated as within the scope of his employment vis a vis the victim, since he was employed to discharge the employer's duty to the victim. If this analysis is right, then the first issue to be determined is whether or not the employer owed a duty to the victim/claimant. This is, no doubt, an area in which there is room for development (cf White v. Jones [1995] 2 AC 207 in relation to negligence). Whether or not a duty of care of the employer to the victim is involved, there must be some form of responsibility towards the victim. Once there is, the employer cannot escape his obligations by delegating to an employee."

73. The consideration of the decision in Lister v. Hesley Hall Ltd. in Cercato-Gouveia v. Kyprianou was rather more limited. The only substantive judgment was that of Dyson LJ. In the course of his judgment Dyson LJ said this:-

"15. The question in what circumstances an employer is vicariously liable for a tort committed by an employee when the employee's act has not been authorised by the employer has vexed the courts for a very long time. On 3 May 2001 – that is, after the judge gave judgment in the present case – the House of Lords gave judgment in Lister v. Hesley Hall Limited [2001] 2 WLR 1311, and they reviewed the authorities and to some extent restated the relevant principles. In that case the question was whether the employers of the warden of a school boarding-house, who had sexually abused the boys in his care, were vicariously liable for the torts of their employee. The speeches of their Lordships require a close and careful analysis which is not necessary, in my view, for the purpose of deciding this appeal. I propose to summarise them very briefly.

16. Lord Steyn said that the basis for holding an employer vicariously liable for the unauthorised acts of an employee is that the employer owes a duty to the victim which he has entrusted to the employee and that there is a close connection between the tort of the employee and his employment – paragraphs 20-24. The question is whether the employee's tort is so closely connected with his employment that it would be fair and just to hold the employer vicariously liable – paragraph 28. Lord Clyde expressed himself in similar terms (paragraph 37):

"What has essentially to be considered is the connection, if any, between the act in question and the employment".

17. A broad approach has to be adopted in considering the scope of the employment. It is inappropriate to concentrate too closely upon the particular act complained of – paragraphs 42 and 43. Lord Hutton agreed with Lord Steyn.

18. Lord Hobhouse agreed that the appeal should be allowed both for the reasons he gave and for the reason given by Lord Steyn. In his own reasons he concentrated on the relationships between the parties. Thus the correct approach to the question whether the tortious acts of the employee fell within the scope of his employment was to ask what was the duty of the employee towards the victim of the tort and what was the contractual duty of the employee towards his employer. The fundamental criterion was a comparison of the duties respectively owed by the employee to the victim and to his employer – paragraph 60. Lord Millett adopted a similar approach to that of Lord Steyn. What is critical is that attention should be directed to the closeness of the connection between the employee's duties and his wrongdoing – paragraphs 69 and 70.

19. In the light of the guidance given in Lister it seems to me that the following points are of relevance in the present case. The defendants owed the claimant the usual duties of care owed by an employer to his employee and entrusted some of these to Mr. Mosconi…"

74. In my judgment it cannot be said that each member of the House of Lords in Lister v. Hesley Hall Ltd. gave the same emphasis to the factors which he considered were relevant to the question whether there should be vicarious liability in a particular situation as each of the others. It is also right to say that upon detailed consideration of the speeches of Lord Steyn, Lord Hobhouse of Woodborough, especially given his express agreement with Lord Steyn notwithstanding his statement of reasons of his own for the overall conclusion on which their Lordships agreed, and Lord Millett it is possible to detect differences of emphasis at different points in each speech. Nonetheless, like Laddie J I take the view that the underlying theme of the speeches at least of the majority is that vicarious liability depends upon the employer owing a duty to the victim performance of which he has elected to entrust to an employee who then commits the wrongdoing in question. That analysis seems consistent with the analysis of Dyson LJ, with whom the other members of the Court of Appeal in Cercato-Gouveia v. Kyprianou agreed, so far as that analysis went – see in particular paragraph 16 and the application of the principles in paragraph 19 to the facts of that case. I therefore accept the submission of Mr. Browne as to that which was decided in principle in Lister v. Hesley Hall Ltd..
75. Recognising the possibility that I might be persuaded, as I have been, that Mr. Browne's analysis of the decision in Lister v. Hesley Hall Ltd. was correct, Mr. Rose submitted in closing that Mr. Pollock owed Mr. Mattis a duty to take reasonable steps to ensure that he was reasonably safe whilst visiting the Club. He submitted that that duty was still owed at the time Mr. Cranston stabbed Mr. Mattis.
76. Mr. Browne, in contrast, submitted that, while Mr. Pollock as occupier of the Club undoubtedly did owe Mr. Mattis the common duty of care, as well as a duty admitted in paragraph 8 of the Defence "to take reasonable care to employ suitable staff to exercise supervision and control of his employees whilst they were acting in the course of their employment", he owed no continuing duty at the time Mr. Mattis was attacked by Mr. Cranston. At that time, submitted Mr. Browne, Mr. Mattis was outside the Club, he had decided to go home, some ten to fifteen minutes had elapsed since Mr. Cranston had left the Club, and during that period Mr. Cranston had eluded his pursuers, armed himself with a knife or knives and returned to the area of the Club.
77. In my judgment the submission of Mr. Browne that at the time of the attack by Mr. Cranston upon Mr. Mattis with a knife Mr. Pollock was not under any continuing duty to Mr. Mattis is sound and I accept it. I reject the submission of Mr. Rose that the proper way of looking at what happened is that it was all one incident starting in the Club, such that Mr. Pollock should be regarded as still, at the time Mr. Mattis was stabbed, under the duties which he owed to Mr. Mattis earlier when Mr. Mattis was in the Club. It seems to me that the initial incident came to an end when Mr. Cranston left the Club. That might have been the conclusion of the entire episode had not Mr. Cook and others sought to chase Mr. Cranston. Even then, once Mr. Cranston had made good his escape the incident was not inevitably going to develop further. If Mr. Cranston had gone home and stayed there, equally the incident was concluded. It was Mr. Cranston's decision to arm himself and to return to the vicinity of the Club that led to the terrible attack upon Mr. Mattis. The lapse of time and the intervening events were, in my judgment, of such a nature that it would not be right to treat the events culminating in the stabbing of Mr. Mattis as one incident commencing in the Club with Mr. Cranston seeking to carry out his duty of ejecting from the Club people whom he believed to have been barred.
78. On the basis that it was not a correct understanding of the decision in Lister v. Hesley Hall Ltd. that the basis of vicarious liability was a duty owed by the employer to the victim of the wrongdoing, which duty the employer sought to perform through the agency of his employee, the actual wrongdoer, but that the operative test was simply whether there was a sufficiently close connection between the tort and the employment of the relevant employee, in this case Mr. Cranston, Mr. Rose submitted in paragraph 9 of his written closing submissions that there was in this case a sufficiently close connection because:-

"a. A business which employs doormen working in a nightclub environment, carries an inherent risk that the doormen will perpetrate acts of violence over and above those legitimate for protecting property or keeping other people safe…

b. The defendant owed the claimant a duty to take reasonable steps to ensure he would be reasonably safe whilst visiting the club. That duty was entrusted in part to Mr. Cranston, whose duties included, evicting those who ought not in the opinion of Mr. Pollock [to] be present. Mr. Cranston had a wide discretion as to how he discharged that duty including the degree of force he used.

c. At the time the claimant was assaulted Cranston was employed by the defendant and being paid to work.

d. Cranston assaulted Cook and Loft in the execution of his duties as a doorman and whilst discharging the duty owed by the defendant to visitors to the club.

e. The assault on Cook and Loft led in turn to the fracas – this was a direct consequence of Cranston's attempts to implement a ban on Cook. During this fracas Cranston himself was injured.

f. Cranston assaulted the claimant as a response to the way he had been treated when trying to implement the ban on Cook.

g. The facts that:

(i) the claimant was on his way home,

(ii) Cranston assaulted him outside the club,

(iii) Cranston had left the club,

do not as a matter of principle or fact negate the close connection necessary. As an example a doorman might chase a customer who has committed an offence in the club out on the street and lose him and then come upon him at a later stage. The use of excessive violence in those circumstances would not negate the necessary connection, nor the fact that the events took place off site, nor that the customer had left the club…

h. The fact that Cranston might have been seeking revenge for the way he had been treated earlier does not of itself prevent the necessary connection being present…

i. The situation in the instant case is strikingly similar [to the factual situation contemplated by Lord Millett in Lister v. Hesley Hall Ltd. in commenting on the decision in Deatons Pty Ltd v. Flew], the very person charged with looking after the claimant – in fact assaults him. It is exactly the sort of abuse of position that the House of Lords was extending vicarious liability to catch….

j. If it be suggested that the magnitude of the violence takes the acts outside the scope of employment then that is a misreading of Lister…

k. The events should be looked at broadly as the court is enjoined to do by Lister, having regard to the context and circumstances, and the case may be put simply in this way: the assault on the claimant arose out of Cranston's reaction to the way he was treated when trying to do his job namely evicting Cook.

l. The location and time are all reasonably proximate."

79. The factors upon which Mr. Rose relied as showing a close connection between Mr. Cranston's employment by Mr. Pollock and the assault on Mr. Mattis are really the same as those upon which Mr. Rose relied in support of his submission that the events of 1 August 1998 starting with the conversation between Mr. Cook and Mr. Cranston and ending with the stabbing of Mr. Mattis should be treated as a single incident. Mr. Browne relied upon the same features upon which he relied in opposition to that analysis as indicating that there was not a sufficiently close connection between the employment of Mr. Cranston and the stabbing of Mr. Mattis, together with:-

"(iii) The fact that Cranston's indignation was caused by, in part, the attack on him in the club is not sufficient to make the Defendant liable for the assault…

(iv) The fact that the assault took place during a period when Cranston was employed by the Defendant is not sufficient to make the Defendant liable for the assault. The fact that it took place away from his place of employment is a strong indicator that he should not be vicariously liable for the assault…

(v) The fact that Cranston's employment as a bouncer gave him the opportunity to quarrel with Cook is not sufficient to make the Defendant vicariously liable for the subsequent assault.

11. The question of vicarious liability can further be tested by asking whether the Defendant would be vicariously liable for the attack on Mahoney… If not where is the distinction between the attack on Mahoney and the attack on Mattis which would not confer vicarious liability in respect of the former but would in respect of the latter."

80. Mr. Rose sought to answer the latter point by submitting that the distinction between the two cases is that after Mr. Mattis had been stabbed Mr. Mahoney intervened by seeking to assist the apprehension of Mr. Cranston. That does not seem to me to be a satisfactory ground of distinction, yet Mr. Rose did accept that Mr. Mahoney would have no claim against Mr. Pollock.
81. Even if I were wrong in my understanding of what was decided by the House of Lords in Lister v. Hesley Hall Ltd., in my judgment there was not on the facts of the present case a sufficiently close connection between the employment of Mr. Cranston by Mr. Pollock and attack made by Mr. Cranston upon Mr. Mattis for it to be fair and just for Mr. Pollock to be held vicariously liable to Mr. Mattis for the consequences of that attack. It is manifest that the motivation of Mr. Cranston for attacking a group of which Mr. Cook formed part was a desire for revenge for the injuries inflicted upon Mr. Cranston in the Club in the aftermath of the hitting by Mr. Cranston of Mr. Loft and Mr. Cook and/or for the humiliation of being driven from the Club and chased. While that sort of motivation would not necessarily prevent vicarious liability from arising in a suitable case, it is clear from the analysis of the earlier cases in Lister v. Hesley Hall Ltd., and in particular from the comments of Lord Millett on Deaton Pty. Ltd. v. Flew, that it would not of itself give rise to liability even if the vengeance in question was sought on the employer's premises during the hours of employment. It is clear from the decision in Warren v. Henlys Ltd. [1948] 2 All ER 935, which was referred to in the speeches in Lister v. Hesley Hall Ltd., without adverse comment as to the result, that it is not enough to give rise to vicarious liability that the employment of the employee provided the occasion for the grievance which prompted the employee to seek retribution against the victim. The principles to be derived from these decisions and the analysis of the facts of this case which I have set out in the context of the submission of Mr. Rose that all the events of 1 August 1998 from the initial confrontation between Mr. Cranston and Mr. Cook up to the attack by Mr. Cranston on Mr. Mattis should be viewed as but one incident have led me to the conclusion that, even if it were not necessary to be able to point to some duty owed by Mr. Pollock to Mr. Mattis which was current at the time of Mr. Cranston's attack, 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.
82. For the reasons which I have given, the claim of Mr. Mattis against Mr. Pollock based on the alleged vicarious liability of Mr. Pollock for the injuries sustained by Mr. Mattis at the hands of Mr. Cranston fails.

Alleged negligence on the part of Mr. Pollock

83. As I have said, Mr. Rose submitted that, quite independently of the question whether Mr. Pollock was vicariously liable to Mr. Mattis for his injuries, he was liable because those injuries were the consequence of a breach on the part of Mr. Pollock of a personal duty of care which he owed to Mr. Mattis. In the light of my conclusion in the context of my consideration of the question of alleged vicarious liability that at the time Mr. Mattis was stabbed Mr. Pollock owed him no personal duty it must follow that this alleged basis for the claim also fails. Quite simply, if Mr. Pollock owed any duty to Mr. Mattis at the time he was stabbed, the likelihood is that I should have found that vicarious liability was established. However, since in relation to this part of his argument Mr. Rose contended for a different duty of care owed by Mr. Pollock to Mr. Mattis than that for which he contended in the context of his argument as to vicarious liability, it is appropriate to make a few observations concerning the duty for which Mr. Rose contended as his second alleged ground of liability on the part of Mr. Pollock.
84. At paragraph 14 of the Amended Particulars of Claim the duty of care said to have been owed by Mr. Pollock to Mr. Mattis was put in this way:-

"a personal duty of care to select, supervise, dismiss or otherwise exercise proper control over his employees in order to prevent unwarranted assaults on customers, including the Claimant."

85. In his written skeleton opening on behalf of Mr. Mattis at paragraph 5 Mr. Rose put Mr. Mattis's case in relation to the alleged personal negligence of Mr. Pollock somewhat differently. He said that Mr. Mattis's case in relation to the alleged personal negligence of Mr. Pollock was:-

"The defendant was negligent to employ and to continue employing Cranston and that the assault was reasonably foreseeable given the defendant's knowledge of Cranston's unsuitability to be a doorman and his propensity to act violently."

86. The emphasis of the alleged duty of care pleaded in the Amended Particulars of Claim was thus a duty to exercise proper control over Mr. Cranston, while the emphasis of the duty apparently underlying the alleged negligence of Mr. Pollock as expounded in the written opening was a duty not to employ, or to continue employing, as a doorman a man known to be unsuitable to perform that role safely.
87. In opening Mr. Mattis's case Mr. Rose sought to rely upon a dictum of Stuart-Smith LJ in Vasey v. Surrey Free Inns Plc [1996] PIQR 373 at page 378 in support of the duty of care for which he contended. The case was concerned with the question whether the owners and operators of a nightclub were liable to the victim of an assault committed by doormen employed by the defendants. The claimant had been refused entry to the nightclub and in a temper he had kicked the door and damaged glass in it. He and his friends were then pursued by three doormen and one of the doormen hit the claimant, causing him injury. The actual decision of the Court of Appeal was that in the circumstances the defendants were vicariously liable for the assault committed by their employee. However, in the course of his judgment Stuart-Smith LJ commented, in the passage relied upon by Mr. Rose:-

"In my judgment, it is part of the duty of a manager of such an establishment to exercise proper control over such men [that is, doormen] to prevent, so far as he reasonably can, unwarranted assaults on customers. Moreover, as Mr. Coleman was inclined to accept, it is reasonably foreseeable that, if he fails in that duty, a person who was [sic, presumably has was meant] offered some provocation may be assaulted and injured."

88. In his closing submissions Mr. Rose drew to my attention a decision of Streatfeild J, Hudson v. Ridge Manufacturing Co. Ltd. [1957] 2 QB 348. In that case an employee of the defendants had been in the habit of playing practical jokes on fellow employees, tripping them up and the like. He had been reprimanded many times, but had taken no notice. The claimant was an employee of the defendants who was injured when he was tripped by the practical joker. In the course of his judgment, at page 350 of the report, Streatfeild J said this:-

"In the same way, if the system of working is found, in practice, to be beset with dangers, it is the duty of the employers to evolve a reasonably safe system of working so as to obviate those dangers, and upon principle it seems to me that if, in fact, a fellow workman is not merely incompetent but, by his habitual conduct, is likely to prove a source of danger to his fellow employees, a duty lies fairly and squarely on the employers to remove that danger."

89. As I have already recorded, at paragraph 8 of the Defence it was admitted that Mr. Pollock owed a duty to take reasonable care to employ suitable staff to exercise supervision and control of his employees whilst they were acting in the course of their employment. That formulation mirrors quite closely the dictum of Stuart-Smith LJ in Vasey v. Surrey Free Inns Plc. In his oral closing submissions Mr. Browne accepted that in some circumstances it might be appropriate to impose upon an employer a duty of care to customers of his business to dismiss an employee known to present a risk of physical harm to such customers. However, Mr. Browne submitted that on the facts of the present case Mr. Pollock owed no such duty in respect of Mr. Cranston, first, because on the evidence, in Mr. Browne's submission, Mr. Pollock was not aware of any inappropriate behaviour on the part of Mr. Cranston towards customers of the Club, and, second, because prior to 1 August 1998 the only evidence of possibly inappropriate behaviour on the part of Mr. Cranston did not indicate that his misconduct was of such a gravity that the only safe course was to dismiss him.
90. On my findings of fact, prior to 1 August 1998 Mr. Cranston had thrown Mr. Priestman across the room when Mr. Priestman failed to respond with the promptness which Mr. Cranston apparently considered appropriate to an instruction to finish his drink. Mr. Priestman does not seem to have suffered any significant injury as a result of being thrown by Mr. Cranston. I incline to the view that Mr. Pollock connived at what happened by suggesting to Mr. Cranston that he wanted him to "deal" with Mr. Fitzgerald, but even if Mr. Cranston acted as he did of his own initiative and, as I have found, Mr. Pollock knew of what had happened, it does not seem to me that dismissal for a first offence of that nature was the only proper course to take. Doormen are employed to control by physical means, if necessary, access to premises, and to maintain, by physical means if necessary, order within premises. The use of physical force on an inappropriate occasion, particularly if not resulting in any significant injury, seems to me, at least arguably, to merit a warning and advice, rather than instantaneous dismissal. There was some evidence, to which I have referred, that other doormen, in particular Mr. Freeman, thought that Mr. Cranston bullied customers, but that seemed to refer to his attitude towards them, and verbal aggression, rather than physical violence. Certainly in respect of the other particular occasion of which I heard evidence as to Mr. Cranston's behaviour, that involving Mr. Cook and Mr. Mattis on 24 July 1998, the only exchanges were verbal. Thus I accept the submission of Mr. Browne that nothing had happened involving Mr. Cranston before 1 August 1998 which should have caused Mr. Pollock to realise that Mr. Cranston posed such a risk to customers of the Club that his continued employment as a doorman was inappropriate.
91. In fact there is a more fundamental reason for finding that Mr. Pollock did not owe Mr. Mattis the duty of care for which Mr. Rose contended. In South Australia Asset Management Corporation v. York Montague Ltd. [1997] AC 191 the House of Lords had to consider the nature of a duty of care not to cause economic loss, and in particular for which consequences of a breach of the relevant duty a tortfeasor was liable. As so often in this area of the law the dividing line between the definition of the duty of care and a consideration of questions of causation was not in all respects clear. The only substantive speech was that of Lord Hoffman. At pages 212 C – 213F of the report he said this:-

"In the present case, there is no dispute that the duty was owed to the lenders. The real question in this case is the kind of loss in respect of which the duty was owed.

How is the scope of the duty determined? In the case of a statutory duty, the question is answered by deducing the purpose of the duty from the language and context of the statute: Gorris v. Scott (1874) LR 9 Ex 125. In the case of tort, it will similarly depend upon the purpose of the rule imposing the duty. Most of the judgments in the Caparo case are occupied in examining the Companies Act 1985 to ascertain the purpose of the auditor's duty to take care that the statutory accounts comply with the Act. In the case of an implied contractual duty, the nature and extent of the liability is defined by the term which the law implies. As in the case of any implied term, the process is one of construction of the agreement as a whole in its commercial setting. The contractual duty to provide a valuation and the known purpose of that valuation compel the conclusion that the contract includes a duty of care. The scope of the duty, in the sense of the consequences for which the valuer is responsible, is that which the law regards as best giving effect to the express obligations assumed by the valuer: neither cutting them down so that the lender obtains less than he was reasonably entitled to expect, nor extending them so as to impose on the valuer a liability greater than he could reasonably have thought he was undertaking.

What therefore should be the extent of the valuer's liability? The Court of Appeal said that he should be liable for the loss which would not have occurred if he had given the correct advice. The lender having, in reliance on the valuation, embarked upon a transaction which he would not otherwise have undertaken, the valuer should bear all the risks of that transaction, subject only to the limitation that the damage should have been within the reasonable contemplation of the parties.

There is no reason in principle why the law should not penalise wrongful conduct by shifting on to the wrongdoer the whole risk of consequences which would not have happened but for the wrongful act. Hart and Honore, in Causation in the Law, 2^nd ed. (1985), p. 120, say that it would, for example, be perfectly intelligible to have a rule by which an unlicensed driver was responsible for all the consequences of his having driven, even if they were unconnected with his not having a licence. One might adopt such a rule in the interests of deterring unlicensed driving. But that is not the normal rule. One may compare, for example, The Empire Jamaica [1955] P. 259, in which a collision was caused by a "blunder in seamanship of ….a somewhat serious and startling character" (Sir Raymond Evershed M.R., at p. 264) by an uncertificated second mate. Although the owners knew that the mate was not certificated and it was certainly the case that the collision would not have happened if he had not been employed, it was held in limitation proceedings that the damage took place without the employers'"actual fault or privity" (section 503 of the Merchant Shipping Act 1894) because the mate was in fact experienced and (subject to this one aberration) competent. The collision was not therefore attributable to his not having a certificate. The owners were not treated as responsible for all the consequences of having employed an uncertificated mate but only for the consequences of his having been uncertificated.

Rules which make the wrongdoer liable for all the consequences of his wrongful conduct are exceptional and need to be justified by some special policy. Normally the law limits liability to those consequences which are attributable to that which made the act wrongful. In the case of liability in negligence for providing inaccurate information, this would mean liability for the consequences of the information being inaccurate.

I can illustrate the difference between the ordinary principle and that adopted by the Court of Appeal by an example. A mountaineer about to undertake a difficult climb is concerned about the fitness of his knee. He goes to his doctor who negligently makes a superficial examination and pronounces the knee fit. The climber goes on the expedition, which he would not have undertaken if the doctor had told him the true state of his knee. He suffers an injury which is an entirely foreseeable consequence of mountaineering but has nothing to do with his knee.

On the Court of Appeal's principle, the doctor is responsible for the injury suffered by the mountaineer because it is damage which would not have occurred if he had been given correct information about his knee. He would not have gone on the expedition and would have suffered no injury. On what I have suggested is the more usual principle, the doctor is not liable. The injury has not been caused by the doctor's bad advice because it would have occurred even if the advice had been correct. "

92. In my judgment the analysis of Lord Hoffman is of general application in considering duties of care in tort. It is not simply confined to cases in which the question is the scope of a duty of care not to cause economic loss. Applying the analysis to the duty for which Mr. Rose contended, it seems to me to follow that the scope of the duty, if it existed, not to employ a doorman who was known to present a risk of physical harm to customers was limited to consequences flowing from what the doorman did during the course of the employment from which he should have been dismissed. It does not extend to consequences flowing from the inability of the doorman to restrain himself from seeking revenge for an incident which occurred during his employment, which revenge was sought when he was not acting in the course of his employment. The duty for which Mr. Rose contended is, on analysis, a duty not to employ someone who is likely to react adversely to happenings during the course of his employment and to seek to inflict physical harm in retribution. If such a duty of care existed, there is no obvious reason why it should matter when the employee sought to exact his revenge. If the employer were to be liable no matter when the disgruntled employee sought vengeance, in effect he would be warranting to those to whom the duty was owed the good behaviour of his employee. That would be a significant advance upon the position as currently understood.
93. While I prefer to analyse the question under consideration in terms of the scope of the duty of care owed, as did Lord Hoffman, the same conclusion is reached if the matter is considered as one of causation. The mere fact of the employment of Mr. Cranston did not cause the injuries to Mr. Mattis. 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.

Conclusion

94. One can only feel the utmost sympathy for Mr. Mattis. He has suffered devastating injuries for which he was in no way responsible and the consequences of which he will have to bear for the rest of his life. The desire to see Mr. Mattis adequately compensated is a natural human reaction. Unhappily, perhaps, the function of the Court is confined to seeking to give effect to the legal rights and liabilities of the parties before it. For the reasons which I have set out, in my judgment, this action fails and is dismissed.