Cercato-Gouveia v Kyprianou & Anor

For vicarious liability for an unauthorised employee tort, the question is whether the wrongdoing was sufficiently closely connected with the employment to make liability fair and just. The inquiry requires a broad assessment of the employee’s role and duties, rather than concentration on the particular wrongful act in isolation. It is fact-sensitive and may depend on nuanced findings after a trial. Summary judgment is inappropriate unless the claim has no real prospect of success and the case is sufficiently clear. An assault occurring at work during an episode involving the employee’s managerial and disciplinary functions may arguably be incidental to the employment, even if it was also motivated by personal hostility.

The claimant, a waiter, alleged that a restaurant manager employed by the defendants assaulted him at work after purporting to dismiss him. He claimed damages for his injuries on the basis that the defendants were vicariously liable. The district judge refused the defendants’ applications to strike out the claim or obtain summary judgment under the Civil Procedure Rules.

The county court judge allowed the defendants’ appeal and entered summary judgment, finding that the assault was wholly personal violence outside the course of employment. The claimant appealed, contending that the judge had reheard rather than reviewed the district judge’s decision and had wrongly concluded that the vicarious liability claim had no real prospect of success. The central issue was whether the pleaded facts disclosed a sufficiently close connection between the assault and the employee’s employment.

Appeal allowed. The order of the county court judge was set aside and the district judge’s order restored.

1. Under CPR 52.11(1), an appeal is ordinarily by way of review rather than rehearing. Although the Court of Appeal did not consider it necessary to reach a concluded view on the first ground, the judge’s reasons and later explanation indicated that he had conducted a review. In any event, the Court of Appeal would itself have had to conduct the necessary review.
2. The House of Lords’ decision in Lister v Hesley Hall Ltd [2001] 2 WLR 1311 required a broad approach to the scope of employment. The relevant question was whether the employee’s tort was so closely connected with the employment that it was fair and just to hold the employer vicariously liable. Attention should be directed to the connection between the employee’s duties and the wrongdoing, and not solely to the character of the particular act.
3. The pleaded facts gave rise to a real prospect of establishing liability. The manager was employed to manage restaurant staff, maintain discipline and apparently dismiss staff where necessary. The assault took place at the workplace during working hours, in an episode in which he alleged that the claimant had misbehaved, and immediately after he purported to dismiss him. The assault could therefore at least arguably be characterised as incidental to what he was employed to do.
4. The issue was one of fact and degree. A trial judge might ultimately conclude that the manager had taken the opportunity provided by his employment to act entirely personally, but the case was not sufficiently clear for summary disposal. Earlier authorities, including Deatons Property Ltd v Flew (1949) 79 CLR 370, were illustrative of the difficulty and generally did not require separate consideration in light of Lister. The Court expressed considerable doubts about the county court judge’s approach, even having regard to Fennelly v Connex South Eastern, while noting that that decision anticipated the broad approach later stated in Lister.

The appellant was awarded his costs in the Court of Appeal and below, subject to detailed assessment.

• Court of Appeal (Civil Division): Appeal allowed. The county court judge’s order was set aside and the district judge’s refusal of summary judgment and strike-out restored.
• Colchester County Court: His Honour Judge Brandt allowed the defendants’ appeal from the district judge and entered summary judgment for the defendants on the assault claim.
• District Judge: District Judge Silverwood-Coke dismissed the defendants’ applications under CPR 24.2 and CPR 3.4.