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Main Discussion

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funkymonkeyesq
Posted - 20 April 2017 21:55
No, I don't agree that s company should be vicariously liable for an employee who takes it upon himself, not through any facet of his job or mistaken belief that it is what his job requires or him, to verbally and then physically assault a customer.

I would have had more sympathy if the defendants had been nightclub operators or the like, and if the assault had been perpetrated by a member of the door staff, and the defendants had taken a blind eye towards, or even encouraged, a level of violence in the performance of their duties.

In terms of the court's reasoning, the court appears to be focussed on getting hit most "workable" test, even if it means one which works to impute liability on an excessively broad basis. Personally, I struggle to see how the application of a "close connection" test would result in this outcome without some quite strained analysis of the evidence - that telling the claimant never to come back was an employment issue.

If one looks at what an employer might do to avoid liability, the broad application of the principle seems to result in a situation where there is virtually nothing a company could do - would a company policy which said "don't racially abuse and then threaten and then beat up customers" suffice? If so, does that really need to be said? If not, what more could a company do, other than relying solely on automated checkouts and (carefully programmed) robot staff?
O.J.
Posted - 20 April 2017 21:59
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Thank you very much for the reply, really appreciate it!
funkymonkeyesq
Posted - 20 April 2017 22:09
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Conversely, one can appreciate the claimant's position: that he went into the defendant's premises, asking if a particular service was available, and was set upon by an employee. The assault started in the shop, and then moved to a different part of the premises but, at all times, was on the premises. But for the defendant's employment of the attacker, the situation would not have arisen.

If the claimant was not able to make a claim vicariously against the employer in such circusmtances, under what circumstances could he have made such a claim?

To limit it to circumstances where the employee was acting in the course of his employment would seem a sensible place, but would limit the principle of vicariously liability substantially - it is not a particular surprise that the court did not go down that route.

If limited to circumstances where the emplpyee's action was broadly consistent with their role, but where they went a bit overboard in their performance, it would mean that someone who was injured by a slight overreaction might get satisfaction vicariously, but someone who suffered through major overreaction would not - which, from a victim perspective, would seem an odd state of affairs.
O.J.
Posted - 20 April 2017 22:24
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Thanks again - it is a rather interesting one!! Would you also say that the inevitable extension of the scope to which vicarious liability can now be applied following this case goes hand in hand with an erosion of personal responsibility?
funkymonkeyesq
Posted - 20 April 2017 22:30
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Out of curiosity, is this for a newspaper article, some kind of application or assessment, or as grounds for appeal to the CJEU and things are looking a bit desperate?!
tarquin
Posted - 20 April 2017 22:31
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This was a fight between two ethnics, and has no relevance to English society whatsoever

Neuberger should have dismissed the appeal and sent the plaintiffs claim to Bliar and Prescott to settle, being far more 'closely connected' to the events here than Morrisons
O.J.
Posted - 20 April 2017 22:46
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For an essay prize at my school (my first time having to write an extensive piece about the law)
funkymonkeyesq
Posted - 20 April 2017 22:50
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In terms of "erosion of personal responsibility", I'd need to check whether the availabiiity of vicarious liability extinguishes liability of the employer himself. I seem to recall that, under the tort of negligence, an individual employee does not owe a personal duty of care to a customer: they are but the agent of their employer. However, the details are hazy, as it's not something I've had to think about for a long time.

If one could not sue the employer, I could see an argument about erosion of personal responsibility - or, at least, of personal liability, which is not quite the same thing.

If, however, it is the case that either could be sued, but that the employer is the more attractive target, with probably deeper pockets, it does not say anything about personal responsibility.
funkymonkeyesq
Posted - 20 April 2017 22:51
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Ah. In which case, the academic integrity statement might be challenging, unless you cite things as "F. Monkey Esq."!

Good luck!
O.J.
Posted - 20 April 2017 22:55
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Thanks again for all your help!!