Graham v Commercial Bodyworks Ltd (Rev 1)

Vicarious liability for an employee’s intentional wrongdoing depends on the quality of the connection between the wrongful act and the employee’s authorised work. An employer’s creation or enhancement of a workplace risk is relevant, but risk, time and place alone do not suffice. The court must make an evaluative judgment having regard to all the circumstances. Liability is more likely where force or friction is inherent in the employment. It is not imposed for a personal frolic or random attack merely because it occurs at work. Working with a dangerous substance, conferring discretion over its use and imposing safety obligations do not, by themselves, connect a reckless assault with the employment.

An employee was seriously injured when a co-employee applied thinner to his overalls and used a cigarette lighter nearby. The employer was not alleged to have been negligent. The County Court found that the co-employee’s conduct was deliberate and reckless but held that the employer was not vicariously liable. The employee appealed to the Court of Appeal. The central issue was whether the wrongful conduct was sufficiently closely connected with the authorised work to be regarded as occurring in the course of employment.

1. Appeal dismissed. The employer was not vicariously liable for the co-employee’s conduct.
2. The governing inquiry is whether the wrongful conduct was so closely connected with acts authorised by the employer that it could fairly and properly be regarded as done in the ordinary course of employment. The fact that the conduct was intentional did not, by itself, prevent liability. The court adopted the modern close-connection approach reflected in Lister v Hesley Hall [2002] 1 A.C. 215 and Dubai Aluminium Co Ltd v Salaam [2003] 2 A.C. 366.
3. The court must make an evaluative judgment having regard to all the circumstances. Under the approach in Bazley v Curry 174 DLR (4th) 45, liability is generally justified where there is a significant connection between the employer’s creation or enhancement of a risk and the wrongful act. Incidental connections of time and place are insufficient. Relevant subsidiary factors include the opportunity to abuse power, furtherance of the employer’s aims, inherent friction or confrontation, power conferred on the employee and the victim’s vulnerability.
4. Authorities concerning employment in which force or workplace friction is inherent, such as Mattis v Pollock [2003] 1 WLR 2158 and Gravil v Redruth Rugby Football Club Ltd [2008] I.C.R. 1222, were distinguishable in principle. The Scottish authorities, including Wilson v Exel UK Ltd [2010] CSIH 35 and Vaickuviene v Sainsbury Plc [2013] CSIH 67, illustrated the separate category of personal frolics and intentional acts unconnected with authorised duties.
5. The employer’s work with thinning agents created a risk, but that risk was not sufficiently connected with the co-employee’s highly reckless act of applying thinner to the appellant’s clothing and using a lighter nearby. The co-employee’s discretion over the thinner and contractual duties to use it carefully added nothing material. The conduct was a personal frolic and did not occur in the course of employment.

• Court of Appeal (Civil Division): On appeal from the Cambridge County Court, the appeal was dismissed: [2015] EWCA Civ 47.
• Cambridge County Court: His Honour Judge Yelton held that the respondent was not vicariously liable for the co-employee’s conduct.