Chapter 20 Answers to chapter-opening problem questions

Harry Lock Eyes is a popular restaurant and bar. Mario, its owner, prides himself on its mellow atmosphere and friendly staff. However, behind the scenes it is a different story.

The best way to answer this question is to work through each of the potential claimants one by one. Use headings. The key issue here is whether Mario is vicariously liable for the actions of his employees. You are asked to advise the relevant parties and so your answer should be focused accordingly. Avoid lengthy introductions. A few lines explaining how your answer will be structured can be helpful where the issues are complicated, but otherwise introductions to problems are of limited value.

Bert

Bert, the restaurant’s sommelier, and Dillon, the head chef, have fallen out over Bert’s wine choices for his signature dish. Eventually Dillon’s quick temper gets the better of him – he grabs an empty wine bottle and hits Bert across the back of the head.

In order for Mario to be vicariously liable the following conditions must be met:

  1. There must be an employer-employee relationship
  2. The employee must have committed a tort and
  3. The tort must be committed while the employee was acting in the course of employment.

All are straightforward here and so the marker will be looking for a clear exposition of the law and relevant case law.

  1. It seems reasonably clear from the facts that Dillon is employed by Mario. He is described as the restaurant’s head chef. Things might have been more complicated if there was a suggestion that he was an agency worker. This is not the case here – and make sure you don’t invent facts. (In any event you will be able to discuss this in relation to Biggles)
  2. An employer can be vicariously liable for the intentional acts of their employee. Dillon has clearly committed a tort – battery and, possibly, assault. Make sure you work though the elements of these torts (chapter 15). When doing this you should also consider any defences – though none are likely to apply in this context.

Again, this is straightforward. Though Dillon was not employed to hit Bert (!), i.e. physical assaults are not part of his job, it is very likely that there would be a sufficiently close connection between his acts and his employment (see Lister v Hesley Hall and Mohamud v WM Morrison Supermarkets plc [2016] and WM Morrison Supermarkets plc v Various Claimants [2020].).

Cadbury Blacker

Meanwhile, Cadbury Blacker, the local librarian, is setting up for her regular evening set singing chilled out versions of indie classics. As Dillon storms out from the kitchen he trips over a lead she has negligently failed to tape down, and twists his ankle.

As you have set out how vicarious liability is established in relation to Bert’s claim, you only need to focus on the aspects of this case which merit further discussion.

The key issue here relates to point (1). Dillon will want to argue that Mario is vicariously liable for Cadbury Blacker’s actions but is she an employee or an independent contractor? The point here is different to the ‘agency’ issue in relation to Biggles and it is important that you do not confuse the two issues. An employer will not be vicariously liable for the actions of an independent contractor, however they may be personally liable for harms resulting from the actions of an independ­ent contractor (and others), by virtue of a non-delegable duty of care (discussed in chapter 13). The key cases here are Woodland v Essex County Council [2013] and Barclays Bank v Various Claimants [2020]..

Although Cadbury has another employer this is in relation to a completely different job (being a librarian). It is likely (on the basis of the ‘akin to employment’ approach in JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012]) that Cadbury will be considered Mario’s employee. See also Cox v Ministry of Justice [2016].

The other parts of the claim are straightforward so you should work through them quickly (don’t simply ignore them). Although you are told that Cadbury has been ‘negligent’ you need to work through duty, breach, causation and defences – most obviously here contributory negligence. Cadbury’s tort is clearly in the course of her employment.

Dougal

Clem, the restaurant manager, phones Dougal at home to see if he can come in to cover Bert’s shift. Dougal had been expecting to have the night off and had just settled down to watch TV. Though Clem makes it clear he does not have to come in, Dougal is irritated by her request. He cycles to the restaurant and when he gets there he punches her.

An employer may also be vicariously liable for an employee’s intentional acts including battery (Mattis v Pollock (t/a Flamingos Nightclub) [2003]). This is almost identical to the facts of Wendall v Barchester Healthcare Ltd [2012]. Often examiners will use or adapt the facts of cases in problem questions. This can be helpful, however be careful not to fall into the trap of assuming that the result will be the same. Your examiner may have ‘tweaked’ the facts to make sure you understand the issues/law fully. In this case, it is unlikely that Mario will be vicariously liable for Dougal’s actions.

Biggles

Meanwhile, Biggles is walking around the bar talking to the customers. He is employed as a host to make the guests feel comfortable, and so is a well-known figure at the bar. For convenience, Mario employs Biggles through an agency, which pays Biggles’ wages.  Bella has been coming to the bar for a few weeks and Biggles has been particularly welcoming. He often encourages her to stay late to help him tidy up and then gives her a lift home in his sports car. After one such occasion Bella complains that Biggles has sexually assaulted her. A subsequent criminal investigation upholds her claim.

There are two key issues here. The first is whether Biggles is an employee of Mario (point (1)). The position of agency workers is not always straightforward. Is Mario or the agency liable for his actions? Or both? It seems likely following Various Claimants v Catholic Child Welfare Society and Others [2012] that both the agency and Mario will be liable. Strong answers will consider the development of the law in this area (e.g. Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947]; Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd and Others [2005]).

The second issue relates to point (3). The test is one of 'close connection' (Lister v Hesley Hall Ltd [2001]). However, the facts are analogous to Maga v Birmingham Roman Catholic Archdiocese Trustees [2010] and so you would also be expected to refer to this case. In this case, the priest was held to be acting in the course of his employment. However, this does not mean that Biggles is. You need to make the arguments for/against this. See the Supreme Court in Mohuamud v WM Morrison Supermarkets Plc [2016] on this point.

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