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.
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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