Scope of employers’ liability: assaults on public property

On behalf of the defendant insurer Hiscox, Kennedys recently secured judgment for the defendant in a claim advanced by an employee who suffered an assault while on a break from work and while in a public area.

Background

On 1 January 2020 the claimant was part way through a shift as a bar tender in a busy Manchester City centre venue when he took a short break. During that break he left his employer’s premises and took a walk to make a phone call.

Whilst walking along a public street to return to his place of work the claimant walked through a group of men and briefly engaged with them. In an unprovoked attack, one of the men punched the claimant and knocked him to the floor.

As a result of the attack the claimant sustained a traumatic brain injury. The assailants were never apprehended.

The claimant’s case

The claimant sued his employer for:

Failure to properly assess the risk of violence against employees while in the area surrounding the employers premises.
Failure to provide a safe space for smoking breaks away from members of the public.
Failure to provide an adequate security presence covering the rear of the premises to act as a deterrent against anti-social behaviour.

The defendant’s case

The defendant argued that it could not be responsible for violence against employees where that violence took place outside of the workplace and where there was no connection between the attacker and the employer. There was no suggestion that the attackers were, or had been, patrons of the establishment.

The defendant accepted that pre-accident risk assessments failed to cover an external smoking area for staff but that the existence of a risk assessment would have made little difference.

HHJ Malek’s findings

The scope of employers’ liability duty did not extend where:

There was no relationship between the aggressor and the employer - the attackers were not patrons or employees.
The claimant was not, at the time of the attack, carrying out his duties as an employee.
The violence against the employee took place on a public street - albeit a few metres from a commonly used staff entrance and the designated smoking area.
The attack was unprovoked and unforeseeable – none of the measures proposed by the claimant would have prevented the assault.

Accordingly, there was judgment for the defendant.

Comment

This case is a useful reinforcement that the common law duty arising from Wilsons & Clyde Coal Company Ltd v English [1938] owed by employers to take reasonable care to protect their employees from reasonably foreseeable risks of injury does not extend to public areas where that employee is not carrying out his workplace duties.

Further that the scope of an employer’s duty to protect against violence against employees can only take effect where there is an existing relationship between the employer and the assailant.