Weddall v Barchester Healthcare Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,LORD JUSTICE MOORE-BICK,LORD JUSTICE AIKENS |
| Judgment Date | 24 January 2012 |
| Neutral Citation | [2012] EWCA Civ 25 |
| Docket Number | Case Nos: B3/2010/2786 & B3/2010/2345 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 January 2012 |
[2012] EWCA Civ 25
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NORWICH COUNTY COURT
HIS HONOUR JUDGE MOLONEY QC
and
ON APPEAL FROM READING COUNTY COURT
HIS HONOUR JUDGE ELLY
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Moore-Bick
and
Lord Justice Aikens
Case Nos: B3/2010/2786 & B3/2010/2345
Mr Timothy Meakin (instructed by Godfrey Morgan Solicitors Limited) for the First Appellant
Mr Stephen Campbell (instructed by Plexus Law) for the First Respondent
Mr Thomas Cleeve (instructed by Chan Neill) for the Second Appellant
Mr Christian Du Cann (instructed by Greenwoods ) for the Second Respondent
Hearing date : 12 October 2011
These are appeals against County Court judgments in which employees suffered injury in an employment setting as a result of violence by another employee. In each case, the judge held that the tortfeasor, who inflicted the violence, was not acting in the course of his employment. In each case, the victim of the assault sues the employer who is alleged to be vicariously liable for the tort of the wrongdoer.
The facts
The first case was heard at Norwich County Court by His Honour Judge Moloney QC. Mr Richard Weddall was the Deputy Manager of a care home operated by Barchester Healthcare Limited in Norwich where people with severe mental health issues lived. His job description required him to "support and care for" residents. The tortfeasor, Mr Marsh, was a Senior Health Assistant at the home, a position junior to Weddall. Marsh had worked there for many years. While Marsh had a conviction for assault occasioning actual bodily harm, he had never been violent towards residents at the home, "let alone fellow staff", as the judge put it. He had undertaken a course dealing with aggression; it did not include dealing with violence between members of staff. The two men did not get on particularly well and each of them disliked aspects of the other's approach to their job.
The judge found that Weddall was on duty on the evening of 6 September 2006 when one of the nightshift employees had 'called in sick'. It was part of Weddall's duties to secure a replacement and he would telephone employees in an attempt to find one who was willing to fill the empty shift. He called Marsh at his home. Marsh was free to accept or refuse the offer of a voluntary extra shift. On his evidence, Marsh had had a bad day because of a row at home and by 6 pm he was very drunk. He did not react well to the call from Weddall and formed the impression that Weddall was mocking him because of his drunken state.
Soon afterwards, Marsh rang the home saying that he intended to resign. Marsh rode to the home on his bicycle, saw Weddall sitting in the garden at the front of the home and attacked him. The judge found that it was "an utterly unprovoked attack, very violent, and that no words of any significance were spoken … before the blows were struck." Weddall was knocked to the ground and kicked. Eventually Marsh was pulled away by another employee.
Marsh appeared to realise what a "wicked and stupid thing" he had done. He said he was sorry and fled the scene. He pleaded guilty in the Crown Court and was sentenced to 15 months imprisonment.
The second case was heard at Reading County Court by His Honour Judge Elly. Mr John Wallbank was employed by Wallbank Fox Designs Limited, a small manufacturing company. He was Managing Director and sole shareholder but it is not suggested that his role in the company, in itself, affects the issue of vicarious liability. There were four employees in addition to Mr Wallbank and his wife, an office administrator and three others, including Mr Brown, who were employed in the manufacture of bed frames.
The judge's findings of fact are not challenged. Brown was employed as a powder coater. His job was to spray metal bed frames with a powder and load them onto a conveyor belt where they were hung on hooks. The belt took them through an oven where the sprayed powder was fused to the frame.
There was evidence that Brown was "not a wholly satisfactory employee" and on some days it was difficult to get through to him. He needed reminding of what he should be doing. On the previous day, and on the day of the assault, he had had to be reminded to switch on the oven. There was nothing to suggest that "he had a short temper or was in any way vicious". To make the most efficient use of the oven, frames had to be fed in regularly.
On the morning of 16 August 2005, Brown was watching a frame come out of the oven. Wallbank noticed that only one other piece of furniture was coming through the oven which left a substantial gap in the feeding in of frames, with a waste of fuel resulting from a heated oven without furniture passing through.
Wallbank said to Brown:
"Why didn't you load the rest of it on? You just lost an oven load of heat."
Wallbank was not angry but was frustrated because he had spoken to Brown on the subject before. Brown did not reply.
Wallbank then walked to the other end of the oven with the intention of helping Brown load furniture onto the belt. He said to Brown "come on" indicating it was his intention to assist him with loading. Brown joined Wallbank at that end of the oven, about 4 metres away, placed his hand on Wallbank's face and threw him onto a table which was about 12 feet away. Wallbank sustained a fracture of a vertebra in his lower back. He was unable to move. An ambulance was called and he was taken to hospital. Brown was dismissed for gross misconduct. He was convicted of inflicting grievous bodily harm at Reading Crown Court and ordered to pay compensation of £600.
The judge noted, though making clear that it did not affect the issue he had to decide, that Wallbank had received a payment under the Criminal Injuries Compensation Scheme.
Judgments below
Having cited the law, Judge Moloney in Weddall stated, at paragraph 16:
"This tort was plainly occasioned by the employment and I entirely accept the submissions of the claimant that it would never have happened but for the employment. But equally, it is clear that Mr Marsh was in no sense carrying out any duties of his employment, or taking advantage of any opportunities given to him by his employment, when he chose to return to the home and there carried out this attack. It was the spontaneous criminal act of a drunken man who was off duty; he was in no sense acting, as I have said, in the course of his employment or the opportunities given by his employment."
The judge then referred to "the disinhibiting effect of drunkenness" and to "the spite and resentment" that had built up between Marsh and Weddall. He stated that "it would not be fair or just to hold an employer vicariously liable for an independent act of this kind." He concluded:
"An employer is not to be held vicariously liable for every act that one person might commit against another occasioned by, growing from, their employment but not otherwise sufficiently specifically connected with it. It seems to me that this case falls into that category. I hesitate to use the old parlance of 'a frolic of his own', but it appears to me, as I have said, that Mr Marsh was here acting personally for his own reasons, in his own context and on the basis of his own passions and feelings and that it would not be fair or just to hold his employer, and Mr Weddall's employer, vicariously liable for those acts merely because of the circumstances that I have outlined above."
Judge Elly, in Wallbank, also cited authority and summarised the submissions of the parties, underlining the claimant's submission that Brown's duties included accepting and responding to the directions or instructions of Wallbank. It was part of Brown's job to accept the discipline and the assault was work related. The judge referred to the test stated by Sir Anthony Clarke MR in Gravil v Carroll [2008] EWCA Civ 689. and concluded:
"As the authorities repeatedly emphasise, this test is a matter of applying the facts of the case and applying the law to those facts. The facts of this particular case are that Mr. Wallbank and Mr. Brown were fellow employees. There is no suggestion that Mr. Wallbank was doing anything other than the job which he was employed to do, which was to manage the business and to see that the work was completed and that it was done efficiently. There is nothing to suggest that he was acting in any sense improperly in disciplining Mr Brown, if that is what his remark may be taken to be doing. Nor, indeed, is there anything which falls outside the scope of his employment in helping Mr Brown with the work to ensure that it is done. But of course the test is not whether Mr. Wallbank was acting within the scope of his employment; the test, of course, is what Mr. Brown was doing. As a matter of fact I have come to the conclusion that, in assaulting his employer, Mr. Brown was not acting in the course of his employment; that his actions fell outside that close connection which is required between the tort which he committed (assault) and the work that he was employed to do. I have given careful consideration to the matter which was submitted within the claimant's submissions that an employee has a general duty towards his fellow employees to protect their safety. But the conclusion that I have come to is that in acting as he did Mr. Brown did act outside the scope of his...
To continue reading
Request your trial
-
Flogas Britain Ltd v Calor Gas Ltd
...liable for infringement of a database right on the basis that no vicarious liability can be established. Mr Campbell relies on Weddall v Barchester Healthcare Ltd [2012] EWCA Civ 25 on vicarious liability in tort from which the following principles are extracted: (1). Vicarious liability is......
-
Jalena Vaickuviene And Others V. J. Sainsbury Plc
...a lethal weapon (cf Bernard v Attorney General of Jamaica [2005] IRLR 398, Lord Steyn at paras 25-27). Wallbank v Wallbank Fox Designs [2012] IRLR 307, which held employers vicariously liable for the violent reactions of an employee to an instruction, had been wrongly decided (cf Weddall v ......
-
G B v Stoke City Football Club Ltd (First Defendant) Peter David Fox (Second Defendant)
...children in care homes) or strangers. Two contrasting reported cases are illustrative. In Wallbank v Wallbank Fox Designs Limited [2012] EWCA Civ 25, a junior employee assaulted a factory manager in response to an instruction and the employer of both was held vicariously liable because of t......
-
Flatman v Germany (Law Society intervening)
...the effect that the employers were not vicariously liable for the tort of their employee, was later upheld by the Court of Appeal: see [2012] EWCA Civ 25. 9 Back in the county court, again the question of costs was raised. The estimate by GMS Law of its profit costs amounted to £23,500 incl......
-
BLG Monthly Update - March 2012
...the English Court of Appeal in the combined decision in Weddall v Barchester Healthcare Ltd and Wallbank v Wallbank Fox Designs Ltd, [2012] EWCA Civ 25. Vicarious liability may be found where the intentional act is 'closely connected' to employment, for example where it is a spontaneous rea......