Rise of assault claims and extending vicarious liability

At the start of this month, the heinous details of Britain’s most prolific rapist have been made public, following the reporting restrictions being lifted at the sentencing hearing of Reynhard Sinaga. Cases of such systematic sexual assault have sadly dominated the headlines in recent years.

Sinaga was a PhD student, who committed his assaults over a number of years, outside of his academic life. However, all too frequently, assaults cases are carried out by perpetrators in a work environment, and inevitably the courts have been increasingly required to examine the circumstances of such cases, to assess whether there has been any breach of duty owed by the employer.

Vicarious liability and assault – a brief history

The test for vicarious liability is long established but this was broadened in Lister v Hesley Hall Limited [2001], where a boarding school was held to be vicariously liable for the actions of a warden who had abused pupils. Prior to this decision, it had been found that sexual abuse by employees of others was not considered to be in the course of their employment. However, in this case, the House of Lords, adopting a decision by the Canadian Supreme Court, established that the ‘relative closeness’ connecting the wrongful act and the nature of the individual’s employment, established liability.

Shortly after this case, Mattis v Pollock [2003], established an employer’s vicarious liability for assault, even where it may be unintentional or pre-meditated, when it was linked to the duties of an employee. In that case, a bouncer in a nightclub had an altercation with a customer and his friends. The bouncer went home to retrieve a knife, returned to the club and stabbed the customer and his employer was held liable.

More recently, in Mohamud v Morrisons [2016], this test for close connection was clarified. In that case, the claimant, a customer at the defendant’s petrol station, suffered an unprovoked physical assault by the petrol station attendant on the forecourt. In considering whether to impose vicarious liability, the Supreme Court held the 2-stage test to be followed is:

  • What functions or “field of activities” have been entrusted by the employer to the employee, i.e. What was the nature of the job?
  • Was there a sufficient connection between the employee’s position and his wrongful conduct to make it right for the employer to be held liable?

This clarified rule was subsequently road-tested in Bellman v Northampton Recruitment Limited [2018], with potentially wide-reaching implications. In this case, an employee had been punched by his managing director at a private gathering after the staff Christmas party. Here, the Court of Appeal found that the “field of activities” must be approached broadly, and there was a sufficiently close connection between the managing director’s field of activities and the assault.

The ‘close connection test’ was further considered as part of the preliminary hearing in Various Claimants v Barclays Bank [2017]. This case concerned claims against Barclays for alleged assaults by a doctor they had engaged to carry out pre-employment examinations. The defendant argument that the doctor was an independent contractor, and as such there was no vicarious liability, failed as the court found there was a ‘relevant relationship’ akin to employment. This case has however been appealed and we await the outcome of the Supreme Court hearing. Regardless of the outcome of this particular case, we anticipate more people, who employers have previously considered ‘not employees’, will be deemed as such for the purpose of a vicarious liability claim.

Comment

As can be seen, there has been a widening obligation of employers in relation to the actions of their employees, which now seemingly extends to those that may not have previously be deemed ‘employers’.

In addition, given the reported prevalence of both physical and sexual assault cases, in part due to the #MeToo movement, which has shone a light on the legal protection available to employees, this is a claims area that is gaining momentum. As such, it seems inevitable that more assault claims will be presented, which challenge and extend the boundaries of the close connection test and employers are likely to find themselves vicarious liable in more instances than ever before.  

Insurers will therefore need to continue to investigate all aspects of these claims thoroughly. In particular the context of where and when the assault was carried out. A ‘broad approach’ should be taken in looking at what the perpetrator’s role and responsibilities include. These cases are all fact sensitive and it remains important to weigh up all the surrounding evidence to determine whether vicarious liability is likely to attach.

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