Re: Summer 2015 | Page 98

at work Fooling around What liability does an employer have for the acts of its workforce, especially when they act outside of the scope of their job? This was one of the issues considered by the Court of Appeal in February 2015 in the case of Paul Graham –v- Commercial Bodyworks Ltd (2015). The basic position is that if an employee injures someone in the course of their employment, the employer may be subject to vicarious liability. The key question in any case of vicarious liability is whether the employee was acting in a personal capacity, or in the course of their employment. This can often be a difficult question to determine. In this matter, the Court initially heard that the company ran a bodywork repair shop in Cambridgeshire where Mr Graham worked. In June 2009, one of his friends – a Mr Wilkinson, who also worked there – sprayed his overalls with a highly flammable thinning agent and then used a cigarette lighter in his vicinity. Smoking was not permitted anywhere in the workshop. Mr Graham’s overalls caught fire around his waist and moved up to his shoulders leaving him with serious injuries. Mr Graham had no memory of the incident and Mr Wilkinson had disappeared and could not be traced to give evidence at the trial. There was evidence that the two had been “mucking around” and chasing each other just before the incident and Mr Wilkinson had been seen to spray something out of a container onto Mr Graham’s back. There was no suggestion that any serious harm was intended, as they were long-standing friends. 96 Despite the company calling the incident “horseplay”, the judge regarded that as a gross underestimate of Mr Wilkinson’s actions, which he categorised as a deliberate, clearly reckless and serious assault. He held that the company was not vicariously liable for Mr Wilkinson’s actions. Mr Graham appealed the decision, leading to the Court of Appeal to ask whether Mr Wilkinson’s conduct was “so connected” with acts which the company allowed, that it might rightly be regarded as being a way of doing them. However, on the facts of this case, despite the company creating a risk by requiring its employees to work with thinning agents – an inherently dangerous substance – it was not possible to say that the creation of that risk was sufficiently closely connected with Mr Wilkinson’s highly reckless act of splashing the thinner onto Mr Graham’s overalls and then using a cigarette lighter in his vicinity. It was not enough to make the company liable. The real cause of Mr Graham’s injuries was the intentional and reckless conduct of Mr Wilkinson, which could not be said to have occurred in the course of his employment. The Appeal was dismissed. By Michael Mulcare