Fennelly v Connex South Eastern Ltd

Vicarious liability for an employee’s assault depends on the nature and scope of the employee’s job viewed in general terms. The court should not dissect a brief incident into separate acts and ask whether each act was expressly authorised. An unauthorised act may remain in the course of employment where it is closely connected with authorised dealings and represents an improper mode of carrying them out. A personal motive or offensive conduct does not necessarily create a separate frolic. A clear temporal, spatial or causal break may do so.

The claimant was assaulted by a railway ticket inspector at Bromley South station after a dispute about the claimant’s ticket. The inspector had called after the claimant, stopped him, demanded and inspected his ticket, and then placed him in a headlock as the claimant began to walk away.

The Bromley County Court found that the assault occurred but held that the inspector’s authorised task had ended and that he had pursued personal ends. The claimant appealed, arguing that the assault was an unauthorised mode of performing duties involving ticket inspection and control of passengers. The central issue was whether the assault was sufficiently connected with those duties to be committed in the course of employment.

1. Appeal allowed. Judgment was entered for the claimant, with the amount to be decided by the court. The defendant was ordered to pay the costs of the appeal and the proceedings below.
2. Per Buxton LJ, the trial judge adopted an excessively narrow conception of authorisation. The relevant question was the nature of the employee’s job in general terms. The employer had authorised the inspector to deal with the public concerning tickets and to impede the progress of passengers who did not produce them.
3. The headlock was not divorced from that employment merely because the claimant had begun to walk away. It followed immediately from the ticket dispute and the continuing altercation. The inspector’s words indicated that the assault was a reaction to the conduct encountered while carrying out his employer’s business. The incident was therefore one continuous episode, rather than a completed employment task followed by a separate personal venture.
4. The test stated in Canadian Pacific Railway Company v Lockhart [1942] AC 591 remained relevant, but the analysis required a broad assessment of the connection between the wrongful act and the authorised work. The reasoning in Vasey v Surrey Free Inns Plc [1996] PIQR 373 was illuminating: an assault may be an unlawful and unauthorised manner of carrying out an employment duty where it remains closely connected with that duty. Daniels v Whetstone Entertainments and Allender [1962] 2 Lloyds Rep 1 and Keppel Bus Company v Sa’ad bin Ahmad [1974] 1 WLR 1082 were distinguishable because each involved a clearer break from the employee’s duties or an act pursued solely for personal purposes.
5. Per Schiemann LJ, there was no principled distinction between a tortious assault which was also criminal and one which was not. The rationale of vicarious liability was the same in either case.

• Court of Appeal (Civil Division): appeal from Bromley County Court allowed. Judgment for the claimant, with damages to be assessed and costs awarded.
• Bromley County Court: His Honour Judge Cryan found that an assault occurred but held that the employee was no longer acting in the course of employment.