Weddall v Barchester Healthcare Ltd (Company No.02792285)

An employer is vicariously liable for an employee’s intentional tort only where the tort is sufficiently closely connected with what the employee was authorised or expected to do that it is fair and just to impose liability. The inquiry is broad and fact-sensitive. It requires a legal value judgment, not a mechanical test based on time, place, hierarchy or workplace friction alone.

An assault which is an employee’s independent, personal venture remains outside the course of employment. Conversely, an irrational but immediate use of force in response to a lawful workplace instruction may be sufficiently connected with the employment. That conclusion does not make every violent response to an instruction an employer’s responsibility.

These conjoined appeals concerned vicarious liability for assaults by one employee upon another.

In the first appeal, a senior health assistant was off duty and drunk when, after being asked by telephone to volunteer for a shift, he went to the care home and seriously assaulted its deputy manager. Norwich County Court dismissed the deputy manager’s claim against the employer.

In the second appeal, a powder coater immediately assaulted the managing director after receiving a lawful instruction about the work. Reading County Court held that the assault was outside the course of employment.

The central issue was whether the respective assaults were sufficiently closely connected with the tortfeasors’ employments to make their employers vicariously liable.

1. Disposition. The court dismissed the appeal in Weddall and allowed the appeal in Wallbank. Damages in Wallbank were to be assessed in the County Court.
2. The governing principle, derived from Lister v Hesley Hall Ltd [2001] UKHL 22 and Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48, is whether the tort was so closely connected with what the employee was authorised or expected to do that it is fair and just to hold the employer liable. The test is broad and flexible. It calls for a value judgment in the particular factual context. It must nevertheless remain within the limits appropriate to a doctrine of strict liability.
3. Weddall. Marsh’s assault was an independent personal venture. He was off duty, drunk, travelled to the workplace after refusing a voluntary shift, and attacked for his own reasons. The request to volunteer was only a pretext. The fact that the attack occurred at the workplace shortly afterwards did not connect it sufficiently with work as a senior health assistant. The employer was therefore not vicariously liable.
4. Wallbank. No strict distinction is drawn between assaults on fellow employees and third parties, or between a junior and a senior employee. Brown’s force was a spontaneous and almost immediate reaction to a lawful work instruction. Giving and receiving such instructions formed part of the employment relationship. In a factory setting, friction and an over-robust reaction to an instruction could be a risk created by the employment and reasonably incidental to it. The assault was therefore sufficiently connected in time, place and causation with Brown’s work to make the employer liable.
5. The court rejected any automatic rule that every violent reaction to an instruction is within the course of employment. The result depended on the close connection in this case and on the policy-based limits of vicarious liability.

• Court of Appeal (Civil Division). In this judgment, [2012] EWCA Civ 25, the court dismissed Weddall’s appeal and allowed Wallbank’s appeal.
• Norwich County Court. His Honour Judge Moloney QC held that Marsh’s assault was outside the course of his employment and dismissed the claim against Barchester Healthcare Ltd.
• Reading County Court. His Honour Judge Elly held that Brown’s assault was outside the course of his employment and found for Wallbank Fox Designs Ltd on liability.