Legal Watch: Personal Injury 12th February 2015 Issue: 051
Employers’ liability In Graham v Commercial Bodyworks Ltd (EWCA) Civ 47 we have another example of the Court of Appeal rejecting an
In This Issue:
one employee to another.
• Employers’ liability
The defendant/respondent operated a bodywork repair shop.
• Costs/controlling party
lighter in his vicinity after sprinkling his overalls with an
• Watch this space
employer’s possible vicarious liability for injuries caused by
The claimant’s co-worker, another employee, used a cigarette
inflammable thinning agent. As a result, the overalls caught
• From within Plexus Scotland
fire and the claimant sustained serious injuries. According to
their contracts of employment, employees were permitted to decant only the approximate amount of thinner required for the job being done and were then required to pour unused thinner into a waste tank. Smoking was not permitted anywhere in
the workshop. There was evidence that the claimant and his
co-worker had been “mucking around” and chasing each other just before the incident and the co-worker had been
seen to spray something out of a container onto the back of the claimant’s overalls. There was no suggestion that the
co-worker intended to cause serious harm to the claimant, who was his long-standing friend. The defendant described the incident as “horseplay”. The judge regarded that as a
gross underestimate of the co-worker’s actions, which he categorised as a “serious assault”, and held that the defendant was not vicariously liable for the co-worker’s actions.
The claimant appealed submitting that the defendant had created the risk of injury to its employees by requiring them
to work with an inherently dangerous substance, namely
the thinning agent, so that the risk of injury from misuse of that substance was inherent in the nature of the business.
Accordingly, the co-worker’s conduct was so closely connected with what he was employed to do that the defendant should be held vicariously liable.
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‘…the relevant inquiry was whether the coworker’s conduct was “so connected” with acts which the defendant authorised that they might rightly be regarded as modes – albeit improper modes – of doing them. Dismissing the appeal, the Court of Appeal held that the
relevant inquiry was whether the co-worker’s conduct was
“so connected” with acts which the defendant authorised
that they might rightly be regarded as modes – albeit improper modes – of doing them. Since Lister (2001), it was no longer the law that intentional acts were not usually to be
regarded as connected with acts authorised by an employer. On the facts of the instant case, although the defendant did
create a risk by requiring its employees to work with thinning agents, it could not be said that the creation of that risk was
sufficiently closely connected with the co-worker’s highly
reckless act of splashing the thinner onto the claimant’s overalls and then using a cigarette lighter in his vicinity.
The UK authorities tended to resolve themselves into two groups, namely cases in which the use of reasonable force
or the existence of friction was inherent in the nature of the employment; and cases such as those arising from
intentional acts at the workplace, whether horseplay or more
serious conduct, which did not usually give rise to vicarious liability. The instant case fell into the latter category. The most recent English authorities on pranks at work brought to the attention of the court pre-dated Lister. Greater reliance was placed at the trial on a series of Scottish cases. Accordingly,
the fact that the defendant had vested discretion in the coworker to use the thinners and that he was obliged to do 02
so carefully by reason of his contractual obligations did not
carry the matter any further. That was little different from any
employer-employee relationship. The fact that the defendant could be said to have created the risk was not sufficient to
impose liability. The real cause of the claimant’s injuries was
the reckless conduct of the co-worker, which could not be said to have occurred in the course of his employment.
Costs/controlling party We are beginning to see an increase in the number of cases in which a non-party is being joined into proceedings for the purposes of a costs order. That is what happened in Excelerate Technology Ltd v Cumberbatch and others (2015) EWHC 204 (QB).
Judgment had been handed down at an earlier trial and the
instant hearing related to various costs orders sought by the successful claimant. Of particular relevance to this report
was an application to join an individual as an additional
‘…it would only be just, fair and reasonable that the individual should be joined to the proceedings for the purposes of costs’
defendant for the purpose of determining his liability for
The deputy High Court judge noted that in his judgment
afforded to the court under S51 Senior Courts Act 1981.
of these claims, to be justified. In the circumstances, he
costs. The claimant relied primarily on the wide discretion The grounds for the application were: • The individual had complete control over the manner in which the second defendant conducted its defence
• That defence was inextricably bound up with the first defendant’s defence
• The defences of both defendants have been nothing but a tissue of lies
at the conclusion of the trial he had found most, if not all found that it would only be just, fair and reasonable that
the individual should be joined to the proceedings for the purposes of costs.
The judge allowed an increase in the claimant’s costs budget and then moved on to consider whether costs should be
awarded on the indemnity basis. The general proposition is that indemnity costs are appropriate where the facts of
the case and/or the conduct of the parties were such as
• The principal reason for the legal costs being incurred
to take the situation ‘out of the norm’ i.e. ‘exceptional’.
• The individual was the person responsible for the
of the individual, the judge found that their conduct both
was the advance of a false defence
second defendant’s failure to give proper disclosure
• He stood to benefit from the successful defence of the claim in the sense that the compensation judgment
Having reviewed the defendants’ conduct, including that
before and during the proceedings had been reprehensible and ‘exceptional’, and he awarded indemnity costs to the successful claimants.
would be executed on the second defendant’s assets and he was a 97% shareholder
• It is probable that his monies and the second
defendant’s monies were one and the same thing in the sense that he was able to determine what sums have been paid out to him (about which there had been no disclosure)
03
From within Plexus Scotland Director not liable for lack of employers’ liability insurance In Campbell v Peter Gordon Joiners Ltd, a company failed to put in place valid employers’ liability insurance.The Inner
House of the Court of Session (Court of Appeal equivalent)
has ruled that the pursuer, apprentice joiner William
Campbell, who raised an action for damages after being injured at work, will be able to pursue his claim against his
insolvent former employer but not against the company’s sole director. No civil liability attached to the director for any
breach of the Employers’ Liability (Compulsory Insurance) Act 1969, as the obligation created by the act was imposed
on the employer and not, where the employer was a
corporation, on the directors. By a 2-1 majority the court allowed an appeal against a decision of the judge at first
instance, which held that the director should be held liable for his failure to obtain insurance against the risk of workers sustaining injury in the course of their employment.
Dissenting, Lord Drummond Young held that the Ss1 and 5 of the 1969 Act did impose civil liability upon any director
who had consented to a company’s failure to insure, or who has connived in or facilitated any such failure to insure.
But the two other judges held that it could not be said that
it was Parliament’s intention to impose civil liability on a
director in the event of a corporate employer’s failure to
insure – to do so would be to “pierce the corporate veil” to an “intolerable extent”, it was argued.
Lord Malcolm took the view that S1 of the1969 act imposes a duty upon employers to insure, not upon others. S5 backs this up with criminal sanctions that are enforceable against
both employers and any recalcitrant directors or officers. There is no mention of any intention or non-intention to
make employers and/or officers liable in damages to anyone harmed by an absence of insurance.
04
For further details please contact: Julie Fisher T: 0844 245 4804 E: julie.fisher@plexuslaw.co.uk
Watch this space Recovery in Wales of medical costs for asbestos-related diseases In earlier editions of this periodical we have monitored the proposals in Wales to make provision for the recovery from defendants of NHS costs incurred in treating the victims of
asbestos-related diseases. (There is now a similar move in Scotland). However, the UK Supreme Court has ruled (by a majority) that the National Assembly for Wales lacks
legislative competence to pass the Recovery of Medical Costs for Asbestos Diseases (Wales) Bill. Part of the reasoning
for this decision was that there was no justification for the retrospective imposition of exposure on insurers, which they
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could legitimately have expected not to fall on them.
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The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 12 Dingwall Road, Croydon, CR0 2NA. Parabis Law LLP is authorised and regulated by the SRA.