LIABILITY FOR AN EMPLOYEE'S ASSAULTS
| Author | F. D. Rose |
| DOI | http://doi.org/10.1111/j.1468-2230.1977.tb02432.x |
| Published date | 01 July 1977 |
| Date | 01 July 1977 |
LIABILITY
FOR
AN
EMPLOYEE’S
ASSAULTS
COURTS
within the British Commonwealth have demonstrated a
persistent reluctance to hold that an employee’s assault has been com-
mitted within the course of his employment so as to make his
employer vicariously liable for the tort. The cases follow a familiar
pattern. With barely a thought for whether
or
not an employee’s
victim should have
a
remedy against the employer, the courts tend
to pursue the orthodox line
of
declaring that there is no dispute
about the law and that each case must depend upon its own facts.’
The law, it is universally agreed, is contained in the classic statement
in
Salmond
:
“A
master is not responsible for a wrongful act done by his
servant unless it is done in the course of his employment. It is
deemed to be
so
done if it is either
(1)
a wrongful act authorised
by the master,
or
(2)
a wrongful and unauthorised mode of doing
some act authorised by the master .
.
.
On
the other hand, if
the unauthorised and wrongful act of the servant is not so con-
nected with the authorised act as to be a mode of doing it, but
is an independent act, the master is not responsible: for in such
a case the servant is not acting in the course of his employment,
but has gone outside of it.”
On
this basis, an employer will invariably escape liability for what
may be classified as personal acts of vengeance, malice
or
spite
OR
his servant’s part despite their being generated by and directly con-
cerned with the latter’s employment. Thus, employers have been
held not liable where a servant has assaulted: a quarrelsome
drunk
threatened with ejection from a bar
’;
a customer threatening to
report
a
garage-man’s conduct in the performance of his duties to
his employers
4;
an aggrieved customer whom he had wrongly accused
of not paying his bill 5; a patron whom he had ejected from a dance
hall in the course of his employment and whom he wrongly suspected
of
assaulting him during the ejection
G;
a customer who became aggres-
sive subsequently to the employee’s attempt to defraud her during
1
See,
e.g. Canadian Pacific Ry. Co.
V.
Lockhart
[I9421 A.C. 591, 599,
per
Lord
Thankerton, delivering the opinion
of
the Judicial Committee
of
the Privy Council.
2
Salmond
on
the Law of Torts
(16th ed., 1973), p. 474. Attention is drawn
to
the imprecision
of
the test
by
Atiyah,
Vicarious Liability
in
the Law
of
Torts
(1967).
p.
181.
3
Griggs
v.
Southside
Hofel
Co.
[1947] 4 D.L.R. 49, 0nt.C.A. In the similar
case
of
Deatons Pty. Ltd.
V.
Flew
(1949) 79 C.L.R. 370, H.C.
of
A., the plaintiff
omitted to argue that the servant was acting in the course
of
her employment: but
cf.
AuckIand Workingmen’s Club
v.
Rennie, infra,
n. 54.
Griggs
was distinguished
in
Lakatosch
v.
Ross
(1974) 48 D.L.R.
(3d)
694,
infra.
4
Warren
v.
Henlys Ltd.
[I9481 2 All E.R. 935
(K.B.),
infra.
5
Fontin
v.
Katapodis
(1962) 108 C.L.R. 177 (H.C.
of
A.).
6
Dnniels
v.
Whetstone Entertainments Ltd.
[1962]
2
Lloyd‘s Rep.
1
(C.A.),
infra
(the second assault).
420
July
19771
LIABILITY FOR
AN
EMPLOYEE'S ASSAULTS
42
1
a
car sale
7:
and
a
passenger complaining of his manner during the
performance
of
his duties as a bus conductor.8
Admittedly we should not seek to make an employer pay for his
employee's intentional wrongdoing merely because the master's pocket
is financially a better target for the plaintiffs attack and there is
understandable fear of imposing too onerous a burden on employers
and hesitation to make a person responsible
for
the misconduct
of
another which involves
a
taint of moral delinquency.' Yet
our
intui-
tion must surely tell
us
that there is something unsatisfactory with
the judicial approach in this area; it is not simply a matter
of
saying
that the law is clear but that its application to the facts is difficult.'O
Despite the admission that there is no one test which is exhaustive,l'
there has been
too
ready acceptance of, too rigid adherence to and
too restrictive an interpretation
of
the traditional test of course
of
employment and this has obscured the central issues of whether an
employer should have a broad liability
for
assaults committed by his
servants and, if
so,
what should be the basis of that liability?
We can appreciate the moral overtones militating against an exten-
sion
of
the employer's liability for conduct which the layman, at
least, primarily associates with the criminal law and all that that
Yet, it is paradoxical that in an area in which
it
might
easily be thought that the law operates severely enough already,
reluctance to extend the liability of an employer may act effectively
to limit the operation of legal sanctions and remedies and to hinder
rather than to help the plaintiff. This arises from the overlapping
of tort and criminal law. In those cases in which the employer's
liability may be considered uncertain, the employee will be liable to
an action in tort and to prosecution under the criminal law. The
employer, however, will not in those circumstances be liable to pro-
ceedings in the criminal courts
for
it is a general rule of the criminal
law that a person
is
not to be held liable for the act of another,
even if that other be his servant acting within the course of his
employment, unless he has authorised
l3
the other's act and has the
requisite mens
real4
In certain circumstances, further proceedings
7
Cave
v.
Ritchie Motors Ltd.
(1972) 34 D.L.R.
(3d)
141, B.C.S.C.
8
Keppel
Bus
Co.
v.
Ahmad
[1974]
1
W.L.R. 1082, J.C. of
P.C.
(Singapore).
See
(1975) 91 L.Q.R. 17; [19741 M.L.J. xix.
Cf.
the similar approach of the Court
of
Session in
Power
v.
Central
S.M.T.
Co.
1949 S.C. 376 (disapproved of by Davies
L.J. in
Chapman
v.
Oakleigh Animal Producfs Ltd.
(1970) 8 K.I.R. 1063, 1072)
and contrast
Jennings
v.
C.N.R.
[1925] 2 D.L.R. 630, B.C.C.A.,
infra.
See
also
the unusual case
of
Namwandu
v.
Attorney-General
[1972] E.A. 108 (H.C.
of
Uganda), For further references,
see
Clerk
&
Lindsell
on
Torts
(14th ed.), pp.
139-142.
9
Fleming,
The Law
of
Torts
(4th ed., 1971), p. 327.
10
"
[Slomething more than pure fact
is
involved
":
Atiyah,
op.
cit.
p. 179.
''
[T]he law is nearly always most obscure in those fields in which judges say the
principle is plain, but the difficulty lies in its application to particular facts
":
llkiw
v.
Samuels
[I9631
1
W.L.R. 991, 1004,
per
Diplock L.J.
11
Staton
v.
National Coal Board
[1957]
1
W.L.R. 893, 895,
per
Finnemore
J.
12
Cf. Auckland Workingmen's
Club
v.
Rerinie
[1976]
1
N.Z.L.R. 278, 282.
13
Such authority will not be found anywhere near as readily as in the civil law.
14
R.
v.
Huggins
(1730) 2 Ld.Raym. 1578; 2 Stra. 883. Exceptions in the
case
of public nuisance and criminal libel (the latter exception having been abolished)
came into existence at common law. The exceptions have developed rapidly with
the increase of statutory offences
of
strict liability.
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