Rory Davis v West Yorkshire Security Ltd and Ors
BLM has successfully defended a catastrophic brain injury case following an assault by a nightclub doorman. Whereas many “bouncer” claims consider the second limb of the current test for vicarious liability (the close connection test) in this case BLM was able to persuade the court that the first limb – whether the relationship was one capable of giving rise to vicarious liability- was not met. This involved consideration of the five factors set out in Various Claimants v Catholic Child Welfare Society (2012) as well as the recent raft of well publicised vicarious liability cases.
A copy of the judgment can be found here.
The claimant sustained serious brain injury after attending a night club in Mansfield in December 2012. The claimant had made repeated attempts to enter the nightclub. An altercation with a doorman ensued in which a doorman was said to have been hit in the face several times. It was at this point that a second doorman, the first defendant George Fessey, intervened. He lifted the claimant and threw him head first to the ground causing multiple injury, including a significant brain injury.
Due to his brain injury the claimant had no recollection of the event. However it was captured by CCTV and witnessed by an off duty police officer. Fessey was sentenced to two years’ imprisonment after admitting an offence of inflicting grievous bodily harm.
The parties to the proceedings
There were four defendants.
First Defendant: George Fessey, the doorman
Second Defendant: Leisure Ninety Nine Ltd., the night club owners
Third Defendant: West Yorkshire Security UK Ltd., ("WYSL") the supplier of security services under a verbal agreement to the club owner and represented by BLM
Fourth Defendant: Ian Cox (t/a Cox Security Services), the first defendant’s employer and sub-contractor to the 3rd defendant for the supply of security services to the second defendant’s premises.
Claim against the Third Defendant
Judgment had been obtained against the 1st, 2nd and 4th defendants before the trial against the third defendant. However, the doorman was without means, and insurers had declined to indemnify both 2nd and 4th defendants. To hope to recover damages the claimant needed to establish liability against the 3rd defendant (hereafter simply referred to as the “defendant”).
An allegation that the defendant was liable in negligence was not pursued, leaving the sole issue for trial to determine whether the third defendant was vicariously liable for the actions of the doorman.
The two limb test
Although the defendant was not the employer, it is common knowledge that vicarious liability can established beyond the confines of the traditional employer/employee relationship.
In Various Claimants v Catholic Child Welfare Society 2012 UKSC (“VC v CWS”), Lord Phillips endorsed the two limb test set out by Hughes LJ in the Court of Appeal stating that the test requires a synthesis of two stages:
- Considering the relationship between the wrongdoer and the person alleged to be vicariously liable to see whether it is one capable of giving rise to vicarious liability
- That done, to look for a connection between that relationship and the act the or omission.
Whilst on the evidence in this case it was conceded that (1) the doorman had caused the claimant’s injuries, and (2) that the actions took place during the course of the doorman’s employment and vicarious liability could attach in such circumstances, the defence advanced by BLM was that the relationship between defendant and the doorman was not capable of imposing vicarious liability against the defendant; in short that the first limb did not apply.
First limb: Relationship and vicarious liability
The criteria by which it would be fair, just and reasonable to impose vicarious liability were set out in the Supreme Court’s decision in VC v CWS:
- the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability
- the tort will have been committed as a result of activity being taken by the employee on behalf of the employer
- the employee's activity is likely to be part of the business activity of the employer
- the employer, by employing the employee to carry on the activity, will have created the risk of the tort committed by the employee
- the employee will, to a greater or lesser degree, have been under the control of the employer
Not all of these criteria carry equal weight. In Cox v Ministry of Justice 2016 UKSC, the Supreme Court stated the first criterion is unlikely to be of independent significance, and that the fifth criterion did not have the significance once attached to it (but see later as to complete absence of control). However criteria 2, 3 and 4 were interrelated and, encompassing authorisation or delegation, integration into business and creation of risk, could lead to a relationship wider than employment giving rise to vicarious liability.
It was the defendant’s case that an examination of these criteria would lead to a conclusion that vicarious liability did not arise from the defendant’s relationship with the doorman.
The factual background
The basis for the claimant’s case was that the defendant was the doorman’s “apparent” employer.
The judge accepted the defendant’s evidence. It was not disputed that the defendant had sub-contracted the supply of security services to the Doorman’s employer. The defendant said it had made clear to the club owner it would sub-contract the services, a contention that the Judge said he accepted and was consistent with the defendant’s usual approach to other similar contracts. The defendant rarely visited the club and there was no evidence of any dealings between the doorman and the defendant’s representative. Neither was there any evidence that the defendant exercised any degree of control over the doorman.
Analysing the first limb criteria
The argument for the defendant accepted by the Judge was that:
- The doorman was not employed by the defendant (“apparent” or otherwise) but by the 4th defendant and there was no evidence of any dealings between the defendant and the doorman or any other employee of the 4th defendant
- The doorman was not in any way integrated into the defendant’s business. The doorman’s employer was running an independent business. The doorman’s activities were “attributable to the conduct of a recognisably independent business” of his employer. (This reflected a phrase in the judgment of Lord Reed in Cox v Ministry of Justice. Whilst recognising that vicarious liability can arise outside of the relationship of employment, the activity has to be part of the business activities of the party alleged to be vicariously liable, rather than “attributable the conduct of a recognisably independent business of his own or of a third party”)
- There was no evidence that the defendant exercised any degree of control over the doorman. Although “control” is not always determinative, in the “Cox” case, Lord Reed stated that the absence of any control would be liable to negative the imposition of vicarious liability. The Judge was prepared to accept that this was such a case of no control
- The result of all the above was that the criteria considered in the VC v CWS and Cox cases led to the conclusion that there was not a relationship between the defendant and the wrongdoer which could support the imposition of vicarious liability against the defendant
Accordingly the defence by BLM on behalf of the defendant succeeded. An application for leave to appeal was refused, though it is thought the claimant will seek permission from the Court of Appeal.
Dual vicarious liability
The question arose (but became irrelevant in the light of the above outcome) of whether the existence of judgment against the second and fourth defendants was an obstacle to the imposition of vicarious liability against the defendant. The Judge’s view was that this was not relevant. The criteria set out above could be considered against more than one party and vicarious liability could attach to each defendant against which they were satisfied. The Court of Appeal decision in Viasystems (Tyneside) Ltd. v Thermal Transfer (Northern) Ltd. 2005 EWCA Civ 1152 was authority for vicarious liability against multiple defendants.
What this means for you:
- The claimant needed to fix the defendant with vicarious liability given the financial or insurance status of the other defendants. The strategy was to create a factual nexus which might bring the defendant within the wider range of relationships, beyond true employment, where vicarious liability might be imposed
- The case illustrates the importance of investigating and gathering evidence with the criteria applicable to each of the two limbs, and particularly the first “relationship”, firmly in mind. The evidence covering how the services were engaged and provided supported the “no employment, no control, no integration” defence argument which negatived the imposition of vicarious liability
- With vicarious liability “being on the move” (per Lord Phillips in the VC v CWS case) careful watch needs to be kept on cases which look to exploit or expand that “movement” and to impose vicarious liability as a way of involving a defendant with means and insurance cover
- Recent cases have indicated the movement beyond employment and where both limbs of the test were satisfied, finding both a relationship which could give rise to vicarious liability and the close connection between the relationship and the act / omission:
- In Cox v Ministry of Justice 2016 UKSC 9 (referred to already) the five factors were applied to the negligence of a prisoner in a prison kitchen causing injury to prison staff. Although not employed, the activities had been assigned to the prisoner, furthered the interest of the prison authorities and those authorities had created the risk. Vicarious liability attached to the Ministry of Justice
- In Armes v Nottinghamshire County Council 2017 UKSC 60, a local authority was found vicariously liable for the acts of foster parents who abused children placed in their care. The foster parents provide care as an integral part of the council’s activities and the acts committed by the parents were in the course of an activity carried on for the benefit of the local authority
- In Various claimants v Barclays Bank PLC  EWHC 1929 (QB), 126 claimants alleged abuse at the hands of an independent physician engaged to conduct compulsory health screening of employees. A preliminary issue hearing determined whether the employer, Barclays Bank, could be vicariously liable for the physician’s abuse if proved. It was found that the examinations were an integral part of the business activity of the bank, the examinations were for the benefit of the bank which has created the risk by requiring them. There was also an element of control as the Bank required that an examination was needed and which doctor was to perform it. It was also found that the abuse if proven was closely connected with the relationship for vicarious liability to follow
- These cases illustrate the scale of the movement into what might once have been considered to be “non-employment” situations and where vicarious liability will attach based on the criteria set out above
- Distinct from the “relationship” cases are those where the second limb is in issue: connection with the relationship. That may be in conjunction with a dispute on the first limb or alone, but always reliant on the facts;
- Mohamud v William Morrison Supermarkets plc  UKSC11 held that the assault of a customer at a petrol station by a Morrison’s employee was still connected with the relationship, as still part of his duties of dealing with customers
- The opposite was found in Bellman v Northampton Recruitment Ltd.  EWHC 3104 (currently pending appeal): a Managing Director assaulted a colleague during a debate about work which took place at a hotel after an organised work event. The judge held the assault was not closely connected with work or the earlier work event
- More recently in Various Claimants v WM Morrisons Supermarket PLC  EWHC 3113 (QB) close connection was found where an IT auditor had posted personal details of nearly 100,000 employees on a file sharing web-site. There was an unbroken thread between his work and the act, and in his work he was entrusted with the data and his employers were taken to have created and taken the risk
- The reach of both limbs is becoming clearer though by no means has the limit been reached. The gathering of evidence by reference to the criteria and decided cases under both limbs is the key to success in defending these cases as was illustrated in the successful defence to the claim against the defendant