Mattis v Pollock (t/a Flamingo's Nightclub)

An employer may be vicariously liable for an employee’s intentional and criminal assault where the assault is so closely connected with the employee’s authorised or expected duties that it is fair and just to impose liability. The inquiry is broad and evaluative. Personal revenge, a private motive, criminal conduct, disobedience of instructions, or an independent act do not necessarily sever the connection with employment.

Where a door supervisor is employed and encouraged to maintain order through aggression and intimidation, a retaliatory assault may remain the culmination of the work-related incident even though it occurs outside the premises after an interval and after the employee has armed himself.

The appellant was rendered paraplegic when Stephen Cranston, a door supervisor at the respondent’s nightclub, returned to the vicinity of the club with a knife and stabbed him. Earlier that night Cranston had violently attacked customers inside the club. The appellant had intervened to protect one of them. Cranston was then assaulted by others, left the premises, went home, armed himself and returned seeking revenge.

The appellant claimed that the nightclub owner was vicariously liable for Cranston’s attack and personally liable for employing and encouraging an aggressive doorman. His Honour Judge Richard Seymour QC dismissed both claims on 24 October 2002. He treated the stabbing as a separate incident and held that the necessary close connection with Cranston’s employment had ended. The appeal concerned whether the later assault remained sufficiently connected with that employment, and whether personal liability also arose.

1. Appeal allowed. The court held that the judge had approached vicarious liability too narrowly. The governing question, derived from Lister v Hesley Hall Ltd [2001] UK HL 22 and Dubai Aluminium Co Ltd v Salaam and Others [2002] UK HL 48, was whether the stabbing was so closely connected with what the respondent authorised or expected of the doorman that it was fair and just to impose vicarious liability.

2. The inquiry required evaluation of all the circumstances. An intentional, criminal or self-interested act, including an act contrary to instructions, does not by itself defeat vicarious liability. Earlier decisions provide useful comparisons but do not replace the fact-specific assessment.

3. Cranston was employed to keep order and discipline. The respondent knew of, approved and encouraged his aggressive and intimidatory treatment of customers. The court held that the stabbing was the virtual culmination of the incident begun in the club. Cranston returned because the earlier events had injured him and undermined his status as the intimidating doorman the respondent expected him to be. His words when stabbing the appellant directly linked the attack to the appellant’s intervention inside the club. The intervening stages, lapse of time, departure from the premises and personal revenge did not extinguish the respondent’s responsibility.

4. The court also stated that vicarious liability does not invariably establish an employer’s personal liability. On these facts, however, personal liability would also follow because the respondent selected, knew of and encouraged Cranston’s aggressive tendencies, and the assault culminated in conduct of the kind he expected. That conclusion was expressly unnecessary to the result once vicarious liability had been established.

• Court of Appeal (Civil Division): In Mattis v Pollock [2003] EWCA Civ 887, allowed the appeal and held the respondent vicariously liable for the assault.
• High Court, Queen’s Bench Division: His Honour Judge Richard Seymour QC dismissed the claimant’s personal-injury claim on 24 October 2002.