Vicarious Liability - Workplace Conflict

Rev'd Prof Helen Hall, Nottingham Law School https://www.ntu.ac.uk/staff-profiles/law/helen-hall

Vicarious Liability, like the monster in a successful Hollywood horror franchise, will not be laid to rest. Despite the best efforts of appellate courts to defeat it and set out a coherent framework that can be applied consistently, it continues to perplex students, advocates and judges alike. The principles that apply to intentional wrongdoing are especially elusive, despite more than a quarter of century of discussion since Lister v Hesley Hall [2001] UKHL 22.

The decision in Lister was a watershed. Prior to this ruling, claimants needed to prove that a tortfeasor was acting in the course of their employment when the wrongful act or omission occurred. The facts of Lister concerned sexual abuse committed by the warden of a boarding school for children with emotional and behavioural challenges. Had the course of employment test been maintained, claimants in cases like this would have been able to harness vicarious liability. For obvious reasons, heinous criminal activity would never be within the course of anyone’s employment. The House of Lords therefore replaced this requirement with a test of “close connection”, influenced partly by the then recent judgments of the Supreme Court of Canada in Bazley v Curry [1999] 2 SCR 534 and Jacobi v Griffiths [1999] 2 SCR 570.

Ever since then, courts and commentators alike have been defeated by the challenge of formulating criteria to reliably and rationally identify a close connection. Whilst some situations fall very clearly within or without the scope of a close connection, many cases are far less certain. It can be very difficult to lawyers to advise on the merits of settling or pursuing claims that could easily go either way. Furthermore, even in areas where some relatively consistent patterns have developed, the underlying logic can be hard to articulate. For instance, it is now quite well established that sexual assaults will in some circumstances be closely connected with a tortfeasor’s role, whereas practical jokes will almost never satisfy the test. This latter rule applies even where the materials used by pranksters causing injury were tools required for their job, and the injury occurred in the workplace (see for example Graham v Commercial Bodyworks [2015] EWCA Civ 47 and Chell v Tarmac Cement and Lime Ltd [2022] EWCA Civ 7). There has never been a plausible explanation as to exactly why acts done for the purposes of sexual gratification are sometimes within the remit of vicarious liability, whilst horseplay is generally deemed too remote.

What about acts of violence and aggression? Courts have been willing to accept these as closely connected where the job has involved security staff who might be expected to become involved in confrontations and even physical altercations (Mattis v Pollock [2003] 1 WLR 2158), but outcomes have varied in other contexts. In the recent decision of S v Magiboards Ltd [2025] EWHC 2045 (KB), Richard Wright KC was firm in his opinion that a workplace brawl was not closely connected with the role of its instigator.

There had been friction between two coworkers in a factory, although in the judge’s view, not to the extent that physical violence was foreseeable. The claimant tried to make an argument in negligence as well as vicarious liability, and this was rejected. The claimant alleged that when the tension finally boiled over into violence, the tortfeasor began the confrontation because he believed the claimant to be flouting the unwritten rules of the workplace. The argument for a close connection was made on the basis of an inappropriate mode of addressing this infraction. This reasoning was rejected because:

“The claimant's argument would fix employers with liability in any instance of a deliberate assault, justified by one employee as being carried out because another was not, in their view, following any non-specific rule of the employer, even in circumstances where the employee tortfeasor had no responsibility for the enforcement of the rules, or authority over his co-worker.”

The logic of this passes scrutiny if it is considered on its own terms, and the judge was of course tasked with assessing the case before him. However, if we zoom out of the bigger picture, it remains problematic for the reasons set out above. Why is a tortfeasor pursuing a personal agenda fatal to a claim for vicarious liability in the context of a physical assault in the workplace (even one causing lifechanging injuries, the claimant in Graham v Commercial Bodyworks was very severely burned), but not necessarily sexual assault?

The lack of overarching principles is problematic, both in terms of the practical application of the law, and also the wider interests of justice. Claimants and defendants need to know when and why liability attaches, not only so that they can make informed decisions about litigation strategy, but also in the interests of fairness and transparency. Furthermore, work is needed if the legal framework is to achieve this.

Further Reading

S v Magiboards Ltd [2025] EWHC 2045 (KB)

Chell v Tarmac Cement and Lime Ltd [2022] EWCA Civ 7

Graham v Commercial Bodyworks [2015] EWCA Civ 47

Mattis v Pollock [2003] 1 WLR 2158

Lister v Hesley Hall [2001] UKHL 22

Jacobi v Griffiths [1999] 2 SCR 570

Bazley v Curry [1999] 2 SCR 534