Kafagi v JBW Group Ltd

Vicarious liability can arise without a contract of employment where the relationship between the defendant and tortfeasor is akin to employment. The individual must carry on assigned activities as an integral part of the defendant’s operations and for its benefit. The defendant must also have created the risk of the tort by assigning those activities.

The doctrine does not extend to activities entirely attributable to a recognisably independent business. Relevant considerations include whether the individual may reject work, works for other clients, controls how the work is performed, maintains personal insurance and may engage assistants without the defendant’s knowledge. The absence of even a vestigial degree of control may negate vicarious liability.

The appellant alleged that two bailiffs committed trespass, assault, battery and fraudulent misrepresentation while enforcing a council tax debt. He claimed that the respondent judicial services company was vicariously liable for their conduct.

The County Court at Croydon tried vicarious liability as a preliminary issue. It found that one bailiff was self-employed and the other had no contractual relationship with the respondent, and dismissed the claim. The County Court at Central London dismissed the first appeal.

Permission for a second appeal was limited to whether the lower courts had asked the correct legal question. The central issue was whether the relationship between the respondent and the bailiffs was sufficiently akin to employment to give rise to vicarious liability.

1. Appeal dismissed. The relationship between the respondent and the bailiffs was not akin to employment. The respondent was therefore not vicariously liable for their alleged torts, and the claim had been rightly dismissed.

2. Employment remains the relationship giving rise to vicarious liability in the vast majority of cases. Nevertheless, Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 and Cox v Ministry of Justice [2016] UKSC 10 establish that a relationship without a contract of employment may qualify where the tortfeasor undertakes assigned activities as an integral part of the defendant’s operations and for its benefit. The defendant must have created the risk of the wrongful act by assigning those activities. The extension does not encompass activities entirely attributable to a recognisably independent business.

3. The relevant factors did not support vicarious liability. The principal bailiff operated his own business, could reject and select work, worked for other clients and was free to decide how lawfully to collect debts. He could share the work with another person without the respondent’s knowledge. He maintained his own indemnity insurance and furnished the personal bond required of a certificated bailiff. He could potentially compete with the respondent and was not subject to even a vestigial degree of control. The second bailiff had no contractual relationship with the respondent at all.

4. Mattis v Pollock [2003] EWCA Civ 887 and Dyer v Munday [1895] 1 QB 742 concerned whether an employee’s tort occurred in the course of employment. They did not answer the logically prior question whether the relationship was capable of giving rise to vicarious liability.

5. The respondent was awarded its costs of £5,298, inclusive of VAT. Singh LJ gave the judgment. Irwin and Underhill LJJ agreed.

1. Court of Appeal (Civil Division): Dismissed the second appeal and affirmed that the respondent was not vicariously liable.
2. County Court at Central London: Recorder Steynor dismissed the appellant’s first appeal on 12 January 2016.
3. County Court at Croydon: District Judge Coonan determined the preliminary issue against the appellant and dismissed the claim on 23 April 2015.