Brink's Global Services Inc & Ors v Igrox Ltd & Anor

Vicarious liability for an intentional tort depends on the closeness of the connection between the tort and the purposes for which the employee was employed. The court must assess all the circumstances and ask whether it is fair and just to hold the employer liable. A relevant consideration is whether the wrongdoing was a risk reasonably incidental to the employment.

Where an employer entrusts an employee with exclusive access to goods for a business task, theft of those goods may be sufficiently connected with that task. The earlier analysis that employment provided only a mere opportunity for dishonesty is not determinative. In light of the modern close-connection approach, its continuing application is doubtful.

Brink’s, as bailee, arranged for a sealed container carrying silver bars to be fumigated before shipment. Thamesport engaged Igrox to perform the fumigation. An Igrox employee, Renwick, entered the container and stole 15 bars of silver.

The Deputy Judge in the Commercial Court held that Renwick had acted in the course of his employment and that Igrox was vicariously liable. Igrox appealed. It submitted that Renwick’s employment had provided no more than an opportunity to steal, and relied principally on Heasmans v Clarity Cleaning Co Ltd.

The central issue was whether the theft was sufficiently closely connected with Renwick’s employment as a fumigator to make Igrox vicariously liable.

1. Appeal dismissed. The court upheld the Deputy Judge’s conclusion that Igrox was vicariously liable for Renwick’s theft. The court rejected, however, the Deputy Judge’s finding that Renwick had deliberately ensured that the container was not gassed as part of a pre-existing dishonest plan. Mr Belsey’s unchallenged evidence showed that he had made that decision because no chemicals were available. That factual correction did not affect the result.

2. The governing inquiry was whether the wrongful conduct was so closely connected with the employment and the acts authorised that it was fair and just to impose vicarious liability. The court applied the flexible approach in Lister v Hesley Hall Ltd [2001] UKHL 22 and Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48. The assessment required consideration of all the circumstances, including whether the tort was a risk reasonably incidental to the employer’s business.

3. Renwick had been employed to fumigate the container and its contents. His work authorised him to enter the secure compound, break the seal, enter the container and have access to the silver. During the fumigation process, Igrox and its employees alone were authorised to deal with the contents. Igrox therefore had a broad responsibility for the goods which it delegated to its employees. Theft by an employee from the very container entrusted to him for fumigation was sufficiently connected with that employment and was a reasonably incidental risk.

4. Heasmans did not require a different result. It remained an illustration that mere presence at premises does not invariably establish vicarious liability, but its earlier mere-opportunity reasoning was doubtful after Lister. Longmore LJ additionally observed that Igrox had both assumed responsibility in relation to the goods and placed Renwick in a position visibly connected with its business, enabling him to approach the container without suspicion.

• Court of Appeal (Civil Division): Appeal dismissed and the Deputy Judge’s finding of vicarious liability affirmed: [2010] EWCA Civ 1207.
• High Court of Justice, Queen’s Bench Division, Commercial Court: The Deputy Judge held Igrox vicariously liable for its employee’s theft. The citation is not stated in the judgment.