Vicarious Liability for AssaultsCaroline Wood
Caroline Wood recently successfully represented the defendant local council in respect of a claim arising from an assault by a teaching assistant on a lunchtime supervisor, both of whom were employees at the same school.
The claimant lunchtime supervisor and a teaching assistant had fallen out due to the claimant not being invited to a party. The claimant was not speaking to the teaching assistant. A teacher at the school was asked to mediate between the two employees as, notwithstanding the dispute was not school – related, the fallout was impacting on the employees when they were at work.
The mediation took place on the school premises, but outside the working hours of both the teaching assistant and the claimant.
During the mediation the claimant got up to leave but, when she reached the door, she turned and shouted at the teaching assistant. As a consequence the teaching assistant grabbed for the claimant’s face causing abrasions to her forehead and chin and the removal of a nose stud. The claimant claimed for personal injury including psychiatric injury.
A short time after the assault occurred a thorough investigation had been undertaken by the school. Transcripts of interviews with the claimant, the assailant and the teacher who carried out the mediation obtained as part of the investigation were available at court. The interview transcripts were of considerable assistance as, by the date of the trial, memories had faded. The importance of early investigation in order to successfully defend these claims cannot be over – emphasised.
The court heard evidence from the teacher who carried out the mediation, the teacher who carried out the interviews and the claimant.
The court did not accept the claimant’s evidence that the assailant teaching assistant had threatened to assault her on several occasions during the mediation in the lead up to the assault; The assault was entirely unpredictable and, when it occurred, it happened so quickly nothing could have been done to prevent it. Therefore the claim in negligence failed.
The court was referred to the recent decision of the Supreme Court in Mr A M Mohamud (in substitution for Mr A Mohamud (deceased) v WM Morrison Supermarkets plc  UKSC 11 where the employer was found vicariously liable for an assault by an employee cashier in a service station on a member of the public. Following this decision it might be thought that it would be difficult for an employer to escape liability for an assault by an employee.
Applying the test for vicarious liability the court had to consider whether there was: –
1. A relationship between the defendant and the wrongdoer, and
2. A connection between that relationship and the wrongdoer’s act or default, such as to make it just that the defendant should be held legally responsible to the claimant for the consequences of the wrongdoer’s conduct.
In this case the wrongdoer was employed by the defendant so the first requirement was satisfied.
The court had to determine whether there was a sufficient connection between the wrongdoer’s employment and her conduct towards the claimant to make the defendant legally responsible.
The court accepted Caroline’s submissions on behalf of the defendant that justice did not incline towards making the school vicariously liable. The dispute arose entirely out of work. The school was responding to a request made by an employee for assistance in attempting to resolve a dispute and this was not a request that could well have been refused. Making a finding of vicarious liability in these circumstances would deter employers from seeking to resolve disputes between employees if it risked the employer being vicariously liable. Refusal of requests for intervention could risk disputes between employees escalating as a consequence of the employer attempting to avoid liability by refusing to intervene. The employment of both parties was incidental to the assault and not within the nature of their employment. The claimant’s claim failed.
Caroline Wood is a member of the civil team at Park Square Barristers, Leeds. She has a mixed claimant and defendant practice with particular experience of Employers’ liability claims including industrial disease and clinical negligence claims.