Majrowski v Guy's and St Thomas's NHS Trust

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD NICHOLLS OF BIRKENHEAD,LORD HOPE OF CRAIGHEAD,BARONESS HALE OF RICHMOND,LORD CARSWELL,LORD BROWN OF EATON-UNDER-HEYWOOD
Judgment Date12 July 2006
Neutral Citation[2006] UKHL 34
Date12 July 2006

[2006] UKHL 34

HOUSE OF LORDS

Appellate Committee

Lord Nicholls of Birkenhead

Lord Hope of Craighead

Baroness Hale of Richmond

Lord Carswell

Lord Brown of Eaton-under-Heywood

Majrowski
(Respondent)
and
Guy's and St. Thomas' NHS Trust
(Appellants)

Appellants:

Mark Turner QC

David Platt

(Instructed by Berrymans Lace Mawer)

Respondents:

Robin Allen QC

William Latimer-Sayer

Hannah Godfrey

(Instructed by Reynolds Williams)

LORD NICHOLLS OF BIRKENHEAD

My Lords,

1

The Protection from Harassment Act 1997 ('the 1997 Act') prohibits harassment. A person must not pursue a course of conduct which amounts to harassment of another. A breach of this prohibition may be the subject, amongst other matters, of a claim for damages. The question raised by this appeal is whether an employer is vicariously liable for harassment committed by an employee in the course of his employment.

2

The harassment in this case concerns two employees of Guy's and St Thomas's NHS Trust ('the Trust'). In November 1998 the Trust employed William Majrowski as a clinical auditor co-ordinator. His departmental manager was Mrs Sandra Freeman. Mr Majrowski was not happy with the way she treated him. He claimed she bullied and intimidated him. She was, he said, rude and abusive to him in front of other staff. She was excessively critical of his time-keeping and work. She imposed unrealistic performance targets for him and threatened him with disciplinary action if he failed to meet them. She isolated him by refusing to talk to him. This treatment, he said, was fuelled by homophobia: he is a gay man.

3

On 20 April 1998 Mr Majrowski made a formal complaint of harassment against Mrs Freeman. The Trust investigated this in accordance with its anti-harassment policy. The investigation resulted in a finding that harassment had occurred. Subsequently, on 7 June 1999 the Trust dismissed Mr Majrowski for reasons unrelated to the circumstances of this case.

4

Nearly four years later, on 13 February 2003 Mr Majrowski commenced these proceedings against the Trust. He claimed damages pursuant to section 3 of the 1997 Act for distress and anxiety and consequential losses caused by the harassment he suffered while employed by the Trust. Mrs Freeman, he said, was at all times acting in the course of her employment by the Trust. He made no claim against Mrs Freeman herself. Nor did he make any claim against the Trust for negligence or breach of his contract of employment. His claim was based exclusively on the Trust's vicarious liability for Mrs Freeman's alleged breach of the statutory prohibition of harassment.

5

The proceedings were struck out summarily by Judge Collins CBE sitting at the Central London County Court on 24 February 2004. He held that the 1997 Act was not designed to create another level of liability in employment law. Employees are already adequately protected by the common law.

6

Mr Majrowski appealed. The appeal was heard by the Court of Appeal, comprising Auld, May and Scott Baker LJJ. On 16 March 2005, by a majority of two to one, Scott Baker LJ dissenting in part, the Court of Appeal allowed the appeal. The case should be permitted to go to trial. The court would then have to determine whether Mrs Freeman did harass Mr Majrowski within the meaning of the 1997 Act in the ways he alleged. The Trust has now appealed to your Lordships' House.

Vicarious liability and statutory obligations

7

Vicarious liability is a common law principle of strict, no-fault liability. Under this principle a blameless employer is liable for a wrong committed by his employee while the latter is about his employer's business. The time-honoured phrase is 'while acting in the course of his employment'. It is thus a form of secondary liability. The primary liability is that of the employee who committed the wrong. (To a limited extent vicarious liability may also exist outside the employment relationship, for instance, in some cases of agency. For present purposes these other instances can be put aside.)

8

This principle of vicarious liability is at odds with the general approach of the common law. Normally common law wrongs, or torts, comprise particular types of conduct regarded by the common law as blameworthy. In respect of these wrongs the common law imposes liability on the wrongdoer himself. The general approach is that a person is liable only for his own acts.

9

Whatever its historical origin, this common law principle of strict liability for another person's wrongs finds its rationale today in a combination of policy factors. They are summarised in Professor Fleming's Law of Torts, 9 th ed, (1998) pages 409-410. Stated shortly, these factors are that all forms of economic activity carry a risk of harm to others, and fairness requires that those responsible for such activities should be liable to persons suffering loss from wrongs committed in the conduct of the enterprise. This is 'fair', because it means injured persons can look for recompense to a source better placed financially than individual wrongdoing employees. It means also that the financial loss arising from the wrongs can be spread more widely, by liability insurance and higher prices. In addition, and importantly, imposing strict liability on employers encourages them to maintain standards of 'good practice' by their employees. For these reasons employers are to be held liable for wrongs committed by their employees in the course of their employment.

10

With these policy considerations in mind, it is difficult to see a coherent basis for confining the common law principle of vicarious liability to common law wrongs. The rationale underlying the principle holds good for equitable wrongs. The rationale also holds good for a wrong comprising a breach of a statutory duty or prohibition which gives rise to civil liability, provided always the statute does not expressly or impliedly indicate otherwise. A precondition of vicarious liability is that the wrong must be committed by an employee in the course of his employment. A wrong is committed in the course of employment only if the conduct is so closely connected with acts the employee is authorised to do that, for the purposes of the liability of the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the employee while acting in the course of his employment: see Lister v Hesley Hall Ltd [2002] 1 AC 215, 245, para 69, per Lord Millett, and Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48, [2003] 2 AC 366, 377, para 23. If this prerequisite is satisfied the policy reasons underlying the common law principle are as much applicable to equitable wrongs and breaches of statutory obligations as they are to common law torts.

11

This approach accords with the trend of judicial decisions and observations and also academic writings. In Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48, [2003] 2 AC 366, your Lordships' House applied the principle of vicarious liability to an equitable wrong. In the shot-firing case of Harrison v National Coal Board [1951] AC 639, 671, Lord MacDermott observed:

'Vicarious liability is not confined to common law negligence. It arises from the servant's tortious act in the scope of his employment and there can now be no doubt that [the employee] breaking the shot-firing regulations committed a tort.'

In the following year Lord Guthrie, sitting in the Court of Session, followed this observation when deciding the shot-firing case of Nicol v National Coal Board (1952) 102 LJ 357. In the further shot-firing case of National Coal Board v England [1954] AC 403, 422, Lord Oaksey expressed approval of Lord Guthrie's decision:

'Unless there is something in the statute which creates the obligation indicating that no action shall be brought at common law in respect of its breach, the ordinary rules of the common law of tort are applicable, including the doctrine respondeat superior.'

In Canada Craig JA expressed a similar view in the British Columbia Court of Appeal in Re Nelson and Byron Price & Associates Ltd (1981) 122 DLR (3d) 340, 347. So did Professor Atiyah in his well-known book Vicarious Liability in the Law of Torts (1967), at pages 280-284. Like opinions are expressed in Fleming, Law of Torts, 9 th ed, (1998), page 567, and Clerk and Lindsell on Torts, 18 th ed, (2000), para 5-47, and see also 19 th edition (2006) para 6-51.

12

The sole reported exception to this trend appears to be the decision of the High Court of Australia in Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR 36. In that case a regulation, regulation 31, prescribed precautions which should be observed before loading or unloading a ship. In default a penalty was imposed on the person in charge. The High Court held the employer of the person in charge was not liable for the latter's breach of the regulations.

13

Their Honours did not speak with one voice. There are two principal strands in their reasoning. Neither assists on the broad issue before your Lordships' House. The first strand concerned the interpretation of regulation 31. The regulation imposed liability on the person in charge. To impose vicarious liability on his employer would give the regulation an operation not justified by its provisions.

14

The second strand of reasoning was more general. The principle of vicarious liability imposes upon an employer liability for his employee's acts, not his wrongs. Vicarious liability exists not because the employee is liable but because of what the employee has done. Regulation 31 imposed no duty on the employer. The duty was imposed solely on the person in charge. So imputing his acts to the employer did not give rise to a claim against the employer.

15

In times past this 'employer's tort' analysis of vicarious...

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