Weddall v Barchester Healthcare Ltd (Company No.02792285)

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 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.

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 employment and, applying the test (as I said) set out in Clerk and Lindsell and in the Gravil v. Carroll case, it seems to me that therefore this case does not have that close connection with the employment which is required to establish vicarious liability. In those circumstances, on the issue of liability, I find in favour of the defendants.”

The submissions were made in the context of a strict liability being imposed on an employer for the torts of his employees committed in the course of their employment with him. In Bernard v Attorney General of Jamaica[2004] UKPC 47, the Judicial Committee of the Privy Council, when holding that on the facts a policeman's use of his service gun whilst acting qua police officer did fix the Attorney General with vicarious liability, stated, per Lord Steyn at paragraphs 21 and 23:

"21.

Vicarious liability is a principle of strict liability….This consideration underlines the need to keep the doctrine within clear limits….

23.

…the Board is firmly of the view that the policy rationale on which vicarious liability is founded is not a vague notion of justice as between man and man. It has clear limits….

…..The principle of vicarious liability is not infinitely extendable.”

That guidance must be kept in mind when the expression ‘course of employment’ is applied to facts found.

For Weddall, Mr Meakin relied on the assault having taken place at the workplace and having been generated by matters related to employment. In responding to Weddall’s call, Marsh was acting in the course of his employment and his reaction and the assault, which occurred within twenty minutes, should be treated as all part of a single incident. During that time, nothing had taken Marsh outside the course of his employment. A broad approach should be taken of the concept of vicarious liability, taking account of all factors.

For Wallbank, Mr Cleeve submitted that there is no doubt that Brown was acting in the course of his employment until shortly before the assault occurred and at the same place as the assault occurred. There was no significant gap either in time or in space before the assault.

All employees need in the course of their work to interact with fellow employees, to cooperate with them and to respond to instructions given by more senior employees. Employees must accept the management structure and perform appropriately, it was submitted. The risk of friction between employees is a risk created by the employer and, if it leads to violence, the employer should bear the risk.

When he assaulted Wallbank, Brown was reacting to instructions given by Wallbank, albeit in an inappropriate way. He was not acting for a purpose or a motive unconnected with work. Wallbank would have been acting in the course of his employment had he struck Brown for failing to comply with instructions; Brown was acting in the course of his employment when reacting to instructions. This approach should apply across the board in employment, it was submitted, whatever the size of the employing organisation and whatever the nature of the work, factory work, office work, work in healthcare. A violent reaction to an instruction is an act in the course of employment.

In their submissions, counsel have rightly concentrated, first, on an analysis of what the employee was employed to do and, secondly, on the connection between what he was employed to do and the tort he committed. Counsel referred to the decision of the House of Lords in Lister v Hesley Hall Ltd [2002] 1 AC 215 where the employers of the warden of a school boarding house were held vicariously liable for the torts of their employee in sexually abusing boys in his care. At paragraph 28, Lord Steyn, with whom Lord Hutton and Lord Hobhouse of Woodborough agreed, stated:

“The question is whether the warden's torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. On the facts of the case the answer is yes. After all, the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in A House.”

Lord Clyde stated, at paragraph 37:

“What has essentially to be considered is the connection, if any, between the act in question and the employment. If there is a connection, then the closeness of that connection has to be considered. The sufficiency of the connection may be gauged by asking whether the wrongful actings can be seen as ways of carrying out the work which the employer had authorised.”

At paragraph 65, Lord Millett stated that vicarious liability was best understood as a ‘loss-distribution device’. Having cited views of academic writers, he stated:

“If the employer's objectives cannot be achieved without a serious risk of the employee committing the kind of wrong which he has in fact committed, the employer ought to be liable. The fact that his employment gave the employee the opportunity to commit the wrong is not enough to make the employer liable. He is liable only if the risk is one which experience shows is inherent in the nature of the business.”

Lord Millett, at paragraph 70, stated:

“What is critical is that attention should be directed to the closeness of the connection between the employee's duties and his wrongdoing and not to verbal formulae.”

He added, at paragraph 80:

“Attention must be concentrated on the closeness of the connection between the act of the employee and the duties he is engaged to perform broadly defined.”

Lord Millett also cited the decision of the Supreme Court of Canada in Bazley v Curry [1999] 174 DLR (4^th) 45, to which reference will be made.

Lord Millett added, in relation to the warden, at paragraph 82:

“He abused the special position in which the school had placed him to enable it to discharge its own responsibilities . . .”

In Dubai Aluminium Co. Ltd v Salaam [2003] AC 366, Lord Nicholls of Birkenhead stated, at paragraph 23:

“. . . Perhaps the best general answer is that the wrongful conduct must be so closely connected with acts the partner or employee was authorised to do that, for the purpose of the liability of the firm or the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the partner while acting in the ordinary course of the firm's business or the employee's employment.”

Lord Nicholls added, at paragraph 24, that decisions require “a value judgment by the court.”

Lord Millett, when considering an employer’s duties to third parties, stated, at paragraph 129:

“. . . But the circumstances in which an employer may be vicariously liable for his employee's intentional misconduct are not closed. All depends on the closeness of the connection between the duties which, in broad terms, the employee was engaged to perform and his wrongdoing.”

For the respondents, it was argued that, given the nature of the employment of each employee, there was insufficient connection between the tortious act and the employment to create vicarious liability. Mr Du Cann, in seeking to uphold the judgment of Judge Elly, relied, as had the judge, on the decision of this court in Gravil. Giving the judgment of a constitution which also included Smith LJ and Richards LJ, Sir Anthony Clarke MR stated:

“21.

As we see it, the authorities show that the essential question is that posed in Lister and adopted in Mattis, namely whether the tort is so closely connected with the employment, that is with what was authorised or expected of the employee, that it would be fair and just to hold the employer vicariously responsible. In answering that question the court must take account of all the circumstances of the case, as Lord Steyn put it, looking at the matter in the round. The authorities show that it will ordinarily be fair and just to hold the employer liable where the wrongful conduct may fairly and properly be regarded as done while acting in the ordinary course of the employee's employment (per Lord Nicholls). This is because an employer ought to be liable for a tort which can fairly be regarded as a reasonably incidental risk to the type of business being carried on (per Lord Steyn).

22.

In these circumstances we would accept Mr Seaward's submission that it is not appropriate to ask a broader question, namely whether in all the circumstances of the case it would be fair and just to hold the club liable. The critical factor is the nature of the employment and the closeness (or otherwise) of the connection between the employment and the tort. The question what is fair and reasonable must be answered in the context of the closeness or otherwise of that connection. The answer to the question in each case of course depends upon its particular facts.

23.

There was in our opinion a very close connection between the punch and the first defendant's employment. He was employed to play rugby for the club and was doing so at the time as a second row forward. As we said in [4] above, when he punched the claimant there was still a melée of the kind which frequently occurs during rugby matches, notwithstanding the fact that the whistle has gone. The DVD shows that the melée was part of the game. It was certainly not in any way independent of it. The melée was just the kind of thing that both clubs would have expected to occur. Regrettably the throwing of punches is not uncommon in situations like this, when the scrum is breaking up after the whistle has gone. Indeed, they can fairly be regarded as an ordinary (though undesirable) incident of a rugby match. In these circumstances there was in our opinion a close, indeed a very close, connection between the first defendant's employment as a second row forward and his punching and injuring the claimant as a prop on the other side.”

The violence occurred on a rugby pitch during a match. I add in fairness to those concerned with the game that discipline, now supported by substantial sanctions, has improved in recent years. Throwing punches normally involves dismissal from the field for the entire match. It may be that the decision of this court in Gravil has had an impact on discipline in Rugby Union.

In Mattis v Pollock [2003] 1 WLR 2158, cited in Gravil, a nightclub owner was held vicariously liable for the violent conduct of a doorman. Giving the judgment of a court comprising himself, Dyson LJ and Pumfrey J, Judge LJ posed the question at paragraph 19:

“. . . was the assault ‘so closely connected’ with what Mr Pollock authorised or expected of Cranston in the performance of his employment as doorman at his nightclub, that it would be fair and just to conclude that Mr Pollock is vicariously liable for the damage Mr Mattis sustained when Crantson stabbed him?”

At paragraph 30, Judge LJ stated:

“Cranston was indeed employed by Mr Pollock to keep order and discipline at the nightclub. That is what bouncers are employed to do. Moreover, however, he was encouraged and expected to perform his duties in an aggressive and intimidatory manner, which included physical man-handling of customers. . .

It was not perhaps anticipated that Cranston's behaviour would be counter-productive, and that by way of self-defence, and indeed revenge, his behaviour would provoke a violent response. That is because the customers with whom he tangled were supposed to be intimidated, and to go quietly. The whole point of any physical confrontation with Mr Pollock's customers in the nightclub, whether engineered by Cranston or not, was that he should win it.”

Judge LJ considered the lapse of time between the start of the incident and the stabbing, which took place outside the club, and concluded, at paragraph 32:

“. . . The stabbing of Mr Mattis represented the unfortunate, and virtual culmination of the unpleasant incident which had started within the club, and could not fairly and justly be treated in isolation from earlier events, or as a separate and distinct incident. Even allowing that Cranston's behaviour included an important element of personal revenge, approaching the matter broadly, at the moment when Mr Mattis was stabbed, the responsibility of Mr Pollock for the actions of his aggressive doorman was not extinguished. Vicarious liability was therefore established. Accordingly the appeal on this ground must succeed.”

A similar approach was followed by the Judicial Committee of the Privy Council in Brown v David Robinson, Sentry Service Co Ltd [2004] UKPC 65, where the employee of a security company, supervising entry to a football ground, pursued, shot and killed a man who had pushed him while seeking to gain entry. The man was stationary with his hands in the air at the time. Lord Carswell stated, at paragraph 12:

“When one substitutes the test of whether Robinson’s acts were so closely connected with his employment that it would be just and reasonable to hold his employer liable, the answer seems clear to their Lordships. They are satisfied that when one applies this test the employer was vicariously liable for the shooting and the judge was quite justified in so holding. They are unable to agree that it fell on the side of the line that would make it an act of revenge or ‘private retaliation’, as the Court of Appeal held.”

In Fennelly v Connex South Eastern Ltd [2001] IRLR 390, a ticket inspector, following an altercation with a passenger during which strong words were exchanged, held the passenger in a headlock. The ticket collector was held in this court to have been acting in the course of his employment. Buxton LJ, with whom Schiemann LJ agreed, stated:

“17.

. . . His job was to deal with the public in relation to tickets and to interfere with their progress if they did not produce such a ticket; in other words to deal with the public in that way, none of that was Mr Sparrow able to do without the authority of his employer. His employer was not able to do that, or to have Mr Sparrow do it on his behalf, had he not had statutory authority under the Railway Managements Acts. Absent Mr Sparrow's status as a ticket inspector he would have had no right at all to call after Mr Fennelly and to block him in this way or otherwise to impede his progress. Had an ordinary fellow passenger done what Mr Sparrow did in checking tickets it would have been an assault.

18.

Against that background I consider it artificial to say that just because Mr Fennelly was walking on, what happened next - immediately next - was divorced from what Mr Sparrow was employed to do. The necklock sprang directly out of the altercation. The altercation was being conducted by Mr Sparrow on behalf of his employer, dealing as he thought appropriate with a passenger who was not reacting as the employer would have wished; it would not have occurred without Mr Sparrow's power to inspect tickets when he was on his employers' premises. It is difficult to say in any realistic terms that this was not all one incident. That is underlined by the finding that the judge made about what Mr Sparrow said when he was actually putting Mr Fennelly into the necklock. When he said, as the judge found and as I have already indicated, words to the effect of “I have had enough of this”, he was referring back to the aggravation and obstruction that Mr Fennelly had caused him when he was looking at his ticket.”

Brink’s Global Services Inc v Igrox Limited [2010] EWCA Civ 1207 involved a theft of bars of silver belonging to a third party by an employee of a company providing a service for the carriage of goods. The case did not involve violence by the employee. In a judgment with which Wilson LJ agreed, Moore-Bick LJ stated, at paragraph 29:

“. . . Whatever may have been the position in the past, the decisions in Lister v Hesley Hall, Dubai Aluminium v Salaam and the cases which have followed them have established that the test involves evaluating the closeness of the connection between the tort and the purposes for which the tortfeasor was employed. While all the circumstances have to be taken into account, the authorities support the view that when making that evaluation it is appropriate to consider whether the wrongful act can fairly be regarded as a risk reasonably incidental to the purpose for which the tortfeasor was employed.”

We were referred to Aldred v Nacanco Limited (transcript 27 March 1987), a pre-Lister case. Several women were in the washroom provided by the employers at their factory. One decided to startle another by giving the wash basin a push, as a result of which the claimant twisted her back. Lawton LJ, with whom Sir John Donaldson MR and Glidewell LJ agreed, stated, at page 9:

“What she did was a deliberate act which had nothing whatsoever to do with anything she was employed to do. It was not an improper way of doing her job; it was something wholly outside her job.”

The step taken in Lister was to make employers vicariously liable for conduct which arose from carrying out duties improperly; in Lister those of a warden dealing with children at a school. That principle would not necessarily have required a different decision in Aldred.

Wilson v Exel UK Ltdt/a Exel [2010] CSIH 35 emerged from post-hearing research. The parties were referred to it and written submissions invited. The First Division considered the case of a supervisor in a depot, entrusted with the implementation of the employers’ policy with regard to health and safety, who, in the course of a prank, forcefully pulled an employee’s head back by her hair.

Lord Carloway stated, at paragraph 28:

“A broad approach should be adopted. Time and place were always relevant, but may not be conclusive and the fact that the employment provides the opportunity for the act to occur at a particular time and place is not necessarily enough.”

Lord Carloway considered the English authorities in detail. He referred to Majrowski v Guy's and St Thomas's NHS Trust [2005] QB 848, at paragraphs 58 and 59, where Auld LJ stated that “in the field of employment law, the reasonably incidental risk criterion may be of particular value”. Lord Carloway, at paragraph 23, rejected the suggestion that the test could depend on whether “the assailant [was] further up the hierarchical tree”.

Lord Reed’s classification in Ward v Scott Railways Ltd [1998] SC 255 was cited. Lord Reed had referred to:

“an unrelated and independent venture of his own, a personal matter, rather than a matter connected to his authorised duties.”

Lord Carloway considered cases, most of them already cited in this judgment, in which vicarious liability had been established. He concluded, at paragraph 33:

“The cases are all consistent with the dictum of McLachlin J in Bazley v Curry . . . that:

...an incidental or random attack by an employee that merely happens to take place on the employer's premises during working hours will scarcely justify holding the employer liable. Such an attack is unlikely to be related to the business the employer is conducting or what the employee was asked to do...

That is the position here. It is clear from the pursuer's averments that Mr Reid's actions in pulling her pony tail were unconnected with his employment. The defenders' business was frozen food storage. Mr Reid was employed as part of that business, albeit that he had a supervisory role over certain staff and duties in relation to health and safety. It was not part of the defenders' business, or Mr Reid's employment, to care for, look after or protect the pursuer in the manner which ultimately rendered the defendants in Lister v Hesley Hall (supra) vicariously liable. Equally, in pulling the pursuer's ponytail, Mr Reid was not purporting to do anything connected with his duties relating to health and safety in the Portacabin or in relation to his supervision of the staff.”

In Bazley, McLachlin J, delivering the judgment of the Supreme Court of Canada, considered the principles to be applied in deciding whether an employer is vicariously liable for an employee’s unauthorised, intentional wrong. The “fundamental question” was stated, at paragraph 41(2), to be:

“Whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability. Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer’s desires. Where this is so, vicarious liability will serve the policy considerations of provision of an adequate and just remedy and deterrence. Incidental connections to the employment enterprise, like time and place (without more), will not suffice. Once engaged in a particular business, it is fair that an employer be made to pay the generally foreseeable costs of that business. In contrast, to impose liability for costs unrelated to the risk would effectively make the employer an involuntary insurer.”

In paragraph 41(3) McLachlin J set out what she described as the “subsidiary factors which may be considered” in determining the sufficiency of the connection between the employer’s creation or enhancement of the risk and the wrong complained of. They are said to include but not to be limited to:

“(a)

the opportunity that the enterprise afforded the employee to abuse his or her power;

(b)

the extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee);

(c)

the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise;

(d)

the extent of power conferred on the employee in relation to the victim;

(e)

the vulnerability of potential victims to wrongful exercise of the employee’s power.”

The distinguishing feature of the present cases, though they are very different from each other on their facts, is the violent response to a lawful instruction. The essence of the appellants’ cases is that, since employees must receive instructions and respond to them, an improper form of response, even a violent one, is an act within the course of employment. A broad view is to be taken of an employee’s duties and the scope of Brown’s employment as a powder coater, it was submitted, included a duty to respond to instructions given to him as a powder coater. A violent response may be an improper one but it is closely connected with the employment as a powder coater. Similarly in Weddall, the violent act was a response, at the place of work, to a request to take on a voluntary shift.

In Weddall, I have no difficulty in concluding that the judge reached the right conclusion for the right reasons. The violence was the employee’s response to a routine and proper request that he volunteer for a night shift. When he received the request, Marsh was at home. He got on his bicycle, in a drunken state, and rode to the workplace with the purpose of inflicting serious violence on Weddall. He attacked Weddall twenty minutes after receiving the request.

That was an independent venture of Marsh’s own, separate and distinct from Marsh’s employment as a Senior Health Assistant at a care home. As the judge put it, Marsh was “acting personally for his own reasons”. The instruction, or request as in fact it was, was no more than a pretext for an act of violence unconnected with work as a health assistant. It is of no relevance to what actually happened that Marsh did from time to time have to exert moderate force upon residents at the home, or that he had been trained how to do so. The context is different, as are the facts, from those in Mattis.

This case is far from the use of modest force by way of spontaneous reaction to an instruction at the workplace, which I have found a much more difficult issue. 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 Wallbank, the conduct of the tortfeasor cannot be described as a prank or as horseplay (unlike Wilson) and does not readily come within the traditional epithet of being ‘a frolic of his own’, or “an unrelated or independent venture of his own” (Ward). Moderate force was used in a spontaneous but deliberate reaction to a lawful instruction.

The authorities cited do not include a case in which force is used by an employee in response to an instruction properly given to him by a more senior employee. The assault in Wallbank was irrational, and unjustified by the lawful instruction given. What the cases cited, Fennelly,Lister, Mattis and Gravil, establish is that there must be sufficient connection between what an employee is required to do and unlawful violence towards a third party.

When considering the test established by the authorities, there can, in my judgment, be no strict distinction between violence towards a third party and violence towards a fellow employee. When considering vicarious liability, the same factors operate in both situations. The exercise of authority towards a third party may be a relevant consideration in third party situations such as Fennelly where the incident arose out of the passenger’s reaction to authority lawfully exercised. However, the need, as between employees, to give and receive instructions does give that factor a separate and additional significance in claims by employees.

No strict distinction can be drawn either, in my judgment, between violence inflicted by the senior and by the junior employee (Wilson). An employer may well be vicariously liable when a senior employee drives home an instruction with a blow. I do not find it possible to exclude the possibility of vicarious liability when a junior employee reacts to a lawful instruction with force.

In some of the cases cited, it can readily be accepted that the use of a degree of force was inherent in the nature of the employment. It is more difficult to establish the link with employment in this case, where employment is as a powder coater in a very small organisation and force is used against a senior employee. Mr Du Cann disputes the proposition that friction or confrontation was “inherent in the employer’s enterprise” (Bazley) or that experience had shown the risk to be “inherent in the nature of the business” (Lord Millett in Lister) or that the risk was “a reasonably incidental risk to the type of business being carried on” (Lord Steyn in Lister, cited by Sir Anthony Clarke MR in Gravil), or “a risk reasonably incidental to the purpose for which the tortfeasor was employed” (Brink’s Global Services). There is no evidence in Wallbank to cast doubt upon what one would expect in a small enterprise with a small workforce, a reasonably relaxed and informal workplace, as workplaces go.

However, as Lord Millett recognised in Lister, the circumstances in which an employer may be vicariously liable for his employee’s intentional misconduct are not closed. Not only was the violence closely related to the employment in both time and space, it was a spontaneous and almost instantaneous, if irrational, response to an instruction. Undoubtedly, reaction to instructions, normally by way of carrying them out, is a part of an employment, whether as a powder coater or in any other capacity. Recent authorities (Fennelly and, since Lister, Mattis, Brown and Gravil) have demonstrated the need to take a broad view of the nature of an employment and what is reasonably incidental to the employee’s duties under it.

Mr Cleeve puts it broadly: an employee who reacts to an instruction with violence towards the instructing employee is inevitably acting in the course of his employment. To accept that broad proposition would, in my judgment, be to go too far. The policy reasons for limiting the operation of the principle of vicarious liability are sound.

On the other hand, as a matter of loss distribution (Lord Millett in Lister), it may not be fair and just (Lord Steyn in Lister,Judge LJ in Mattis, Sir Anthony Clarke MR in Gravil) to deprive of a remedy (except against the fellow employee), an employee who is assaulted by way of reaction to an instruction he has given. The possibility of friction is inherent in any employment relationship, but particularly one in a factory, even a small factory, where instant instructions and quick reactions are required. Frustrations which lead to a reaction involving some violence are predictable. The risk of an over-robust reaction to an instruction is a risk created by the employment. It may be reasonably incidental to the employment rather than unrelated to or independent of it.

I am far from saying that every act of violence by a junior to a more senior employee, in response to an instruction at the workplace, would be an act for which the employer is vicariously liable. In the case of Wallbank, however, I am persuaded, not without hesitation, that the employer should bear vicarious liability for the spontaneous force by which the employee reacted to the instruction given to him. On the facts, this may be a step beyond what emerges from the facts of the cases cited but, applying the principles established in those cases, it is in my view a step that should be taken on the facts of this case.

A broad view must be taken of the nature of the employment when considering violence used by an employee (Fennelly, Mattis and Brown) and I have concluded that the doctrine of vicarious liability does provide Wallbank with a right of action against his employer. It is, of course, ironic that Mr Wallbank himself is in effect the employer but that is not suggested on either side to be relevant to the outcome.

I would dismiss the appeal in Weddall and allow the appeal in Wallbank, with damages in that case to be assessed in the County Court.

I agree that the appeal in Weddall v Barchester Healthcare Ltd should be dismissed and that the appeal in Wallbank v Wallbank Fox Designs Ltd should be allowed, in each case for the reasons given by Pill LJ.

As Pill LJ has shown, the decisions in Lister v Hesley Hall Ltd [2001] UKHL 22, [2001] 1 A.C. 215 and Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48, [2003] 2 A.C. 366 introduced a more flexible principle governing the imposition of vicarious liability, which, in the case of wrongdoing by employees, turns on the closeness of the connection between the wrongful act and the employment. The principle is expressed in broad terms and since the factual circumstances of cases in which the imposition of vicarious liability falls to be considered differ widely, it is not surprising that one can find in the authorities different explanations of the factors which justify holding the defendant liable.

I have had the benefit of reading in draft the judgment of Aikens LJ and agree with him that it would be unwise to treat any one of expressions or concepts that one finds in the authorities as providing the definitive test of whether an employee’s wrongful act was committed in the course of his employment. Each case must be determined by reference to its own facts and the application of the broad and flexible test derived from Lister v Hesley Hall. As Lord Nicholls recognised in Dubai Aluminium Co Ltd v Salaam, that inevitably involves an element of value judgment, but one that has to be made within a defined context: see Sir Anthony Clarke M.R. in Gravil v Carroll [2008] EWCA Civ 689 at paragraph 22.

In common with both Pill LJ and Aikens LJ I have had little hesitation in reaching the conclusion that Mr. Marsh was not acting in the course of his employment. In his case the assault merely happened to occur at his place of work, but was otherwise unconnected with his employment. I also agree that wrongful acts committed by one employee against another while at work can give rise to more difficult questions, but in the present case the circumstances in which Mr. Brown assaulted Mr. Wallbank, in particular the fact that he acted in immediate response to instructions given to him, are sufficient to satisfy me that he was acting in the course of his employment.

I agree with Pill LJ that the appeal in Weddall should be dismissed and the appeal in Wallbank should be allowed, for the reasons he gives.

In Bernard v Attorney General of Jamaica [2004] UKPC 47 at [21], Lord Steyn described vicarious liability as a principle of “strict liability”, with the consequence that the doctrine had to be kept within clear limits. The liability is strict in the sense that once it is proved that the actual tortfeasor would be liable to the victim and the court is satisfied that the doctrine of vicarious liability is applicable, then the person or legal entity said to be vicariously liable is fixed also with the liability, even though he or it was not personally involved with the tort at all. The rationale for the doctrine has been stated by Lord Millett in Lister v Hesley Hall Ltd [2002] 1 AC 215 at [65] to be that it is a “loss distribution device”; in other words, it is good policy that one person, whether a natural person or a legal entity, should be held responsible (on a strict liability basis) so that he or it should bear the financial consequences of the loss caused by the tort of another, even if the person or entity vicariously liable has not been involved in the tort at all. It has been said (Fleming The Law of Torts, 9^th Ed (1998) p.410) that it is fair that those who employ others to advance their own economic interests should be placed under a corresponding liability for losses incurred in the course of that enterprise. In practice often the person whom the law holds vicariously liable is better able to bear the financial consequences precisely because he (or it) is the employer or the principal of an agent and, often, because the person or entity that is held vicariously liable has liability insurance, whereas the actual tortfeasor may not have the means adequately to compensate the victim.

The doctrine of vicarious liability is applicable in various circumstances such as a principal being liable for the tort of his agent and where a person has authorised or ratified the tort of another. But the most common circumstance in which the doctrine is invoked is where it is said that the employer is vicariously liable for the tort of his employee. Thus in each of these two appeals it is alleged that the corporate employer should be held vicariously liable for the tort of an employee and the torts in question are, in each case, intentional torts, ie. those of assault and battery against fellow employees.

It has long been accepted legal doctrine that an employer will not be vicariously liable for the tort of his or its employee, whether committed against a fellow employee or a non-employee, unless the tort was committed “in the course of the employee tortfeasor’s employment”. As Pill LJ has so clearly demonstrated in his analysis of the cases, courts have used various expressions and concepts to express the test of when a tort is or is not committed “in the course of the employee tortfeasor’s employment”. The most generalised test, adopted from previous authorities by Sir Anthony Clarke MR in Gravil v Carroll [2008] EWCA Civ 689 at [21] is “whether the tort is so closely connected with the employment, that is what was authorised or expected of the employee, that it would be fair and just to hold the employer vicariously responsible”. It would be unwise for this court to attempt to identify any one of the expressions or concepts that have been previously used by this court or the House of Lords or the Privy Council as embodying the definitive test of when a tort was committed by the employee torfeasor in the course of his employment. The various different formulations have to be considered in the context of the particular facts of the case in hand.

Although in each of the two present cases the claim arises out of an assault by one employee on another employee, the circumstances in which the assault occurred are very different. In the case of Weddall, Mr Marsh, who attacked Mr Weddall, was not on duty at the time. He was at home off-duty when he was rung up by Mr Weddall and asked to volunteer to come in for duty at the care home where they both worked. Mr Marsh declined the offer, as he was entitled to do. Yet having done so (and thus still being off duty) he then bicycled into the Care Home and, in a drunken state, attacked Mr Weddall. To my mind it is obvious that the intentional tort committed by Mr Marsh on Mr Weddell was not at all connected with Mr Marsh’s employment. Judge Moloney’s description of Mr Marsh’s attack on Mr Weddall as being the “spontaneous criminal act of a drunken man who was off duty” is both graphic and accurate. The assault was clearly an act outside the course of his employment, so that Mr Marsh’s employers, Barchester Healthcare Limited, cannot be held vicariously liable for the tort he committed.

Like Pill LJ, I have found the Wallbank appeal more difficult. However, I think a close analysis of the facts leads inevitably to the conclusion that the tort committed by Mr Brown on Mr Wallbank was done in the course of Mr Brown’s employment. It is clear on the facts that Mr Brown attacked Mr Wallbank as a result of the instructions given by Mr Wallbank to Mr Brown. Those instructions were lawfully given by Mr Wallbank, as the superior employee. Mr Brown reacted to them almost immediately. To my mind the tort flowed directly from the fact that Mr Brown was given instructions by a fellow (but superior employee) in the course of Mr Brown’s employment. The tort was so closely connected with what was expected of Mr Brown, which was to carry out lawfully given instructions, that it would be fair and just to hold his employer, Wallbank Fox Designs Limited, vicariously liable for his tortious attack on Mr Wallbank.

I accept that, in reaching that conclusion, I have had to make a “value judgment”, to use the phrase of Lord Nicholls of Birkenhead in Dubai Aluminum Co Ltd v Salaam [2003] AC 366 at [24] and, obviously, this is a value judgment that is different from that of Judge Elly who tried the case. But, as Lord Nicholls points out in the same paragraph, the “value judgment” on whether an employer is vicariously liable for the tort of his employee is a conclusion of law, based on primary fact and is not “a simple question of fact”. Thus, with respect to Judge Elly, the more I have considered the facts of Wallbank, the more I have become convinced that the judge’s value judgment was wrong. In my judgment Mr Brown’s tort against Mr Wallbank was so closely connected, in time, place and causation, to the instructions given to him by Mr Wallbank as part of Mr Brown’s employment that it is fair and just to hold Mr Brown’s employer liable for his tort.