Weddall v Barchester Healthcare Ltd and Wallbank v Wallbank Fox Designs Limited
[2012] EWCA Civ 25
Decision Number:
Published on: 27/01/2012
Article Authors
The main content of this article was provided by the following authors.
Background
These cases were appeals against County Court judgments in which employees suffered injury as a result of being attacked by another employee following an instruction given in the course of employment. The County Court found in the first instance that the employers could not be held liable for the violent acts of their employees. Both employees appealed, arguing that the employer had vicarious liability for the actions of their employees.The claimants submitted that, since employees must receive instructions and respond to them, an improper form of response, even a violent one, was an act within the course of employment, so that the defendant employer should be vicariously liable for the torts committed. 81In the Weddall case, a care home deputy manager, Mr Weddall, was attacked by a more junior member of staff, Mr Marsh. Mr Weddall had contacted Mr Marsh asking him if he would cover the nightshift of an employee who had called in sick. Mr Marsh was free to accept or refuse the offer of a voluntary extra shift but due to his drunken state became very upset by this request. Soon afterwards, Mr Marsh cycled to the care home, saw Mr Weddell sitting on a wall outside and started to attack him violently. 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.” The court held that no vicarious liability was found for the actions of Mr Marsh. The act had been the spontaneous criminal act of a drunken man who was off duty and had been clearly an act outside the course of his employment. Pill LJ did however conclude that “It is of course an irony that it is the outrageousness of Marsh's conduct that deprives Weddall of a remedy against his employer but the doctrine of vicarious liability, which is policy based, must be kept within limits."In the Wallbank case, Mr Wallbank was Managing Director and sole shareholder of the company. He was assaulted by an employee after giving him what appeared to be a reasonable instruction and offering to help him move some product (the employee pushed Mr Wallbank in the face and onto a table, causing the injury). The employee was sacked and later convicted of inflicting grievous bodily harm and ordered to pay compensation. The company was held vicariously liable for the employee's actions on the basis that the tort had been so closely connected with what was expected of the employee, that it would be fair and just to hold the employer in that situation vicariously liable for the tortuous attack. The court concluded that under established principles, the most generalised test for whether an employer would be vicariously liable for the torts of an employee was whether the tort was so closely connected with the employment that it would be fair and just to hold the employer vicariously responsible. There was no definitive test of when a tort was committed by an employee tortfeasor in the course of his employment. The key differences in this instance however appear to be that in the Wallbank case, the violent act was 'moderate' (a push) and took place spontaneously during employment, whereas the violence in the Weddall case was extreme, not spontaneous and not during the violent employee's working hours.http://bit.ly/wMzaqz
Continue reading
We help hundreds of people like you understand how the latest changes in employment law impact your business.
Already a subscriber?
Please log in to view the full article.
What you'll get:
- Help understand the ramifications of each important case from NI, GB and Europe
- Ensure your organisation's policies and procedures are fully compliant with NI law
- 24/7 access to all the content in the Legal Island Vault for research case law and HR issues
- Receive free preliminary advice on workplace issues from the employment team
Already a subscriber? Log in now or start a free trial
Disclaimer
The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.
This article is correct at 27/01/2012
Q&A
How do I handle it
Legal Island’s LMS, licensed to you
Imagine your staff having 24/7 access to a centralised training platform, tailored to your organisation’s brand and staff training needs, with unlimited users.
Learn more →