The claimant did not appeal the first instance judgement in relation to breach of statutory and common law duty.
The appeal was focussed solely on that part of the judgement relating to vicarious liability.
In particular, the claimant sought to persuade the Court of Appeal that the fact that the defendant used its contract of employment to bind its employees to observe health and safety legislation provided the necessary close connection between the work and the assault.
The modern English law of vicarious liability starts with Lister v Hesley Hall Limited  1 AC 215 which is founded on the Canadian Supreme Court decisions in Bazley v Curry and Jacobi -v- Griffiths.
Often quoted from the Lister judgement is the following:
"A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised mode of doing some act authorised by the master" and
“But a master, as opposed to the employer of an independent contractor, is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes - although improper modes - of doing them.”
This is the ‘close connection’ test now requiring consideration in claims of this type. Was the act which occurred so closely connected with the defendant employers’ business to make it fair, just and reasonable to impose a liability on them?
From the judgement in Bazely a number of principles can be derived, from which to assess the close connection test.
The court also identified five factors that might assist in determining the sufficiency of the connection between the employer’s creation or enhancement of risk (and the wrong complained of).
- The opportunity that the employer’s enterprise afforded the employee to abuse his or her power (in Graham the claimant and his friend were present at work which involved the use of dangerous thinners - satisfied)
- The extent to which the wrongful act may have furthered the employer’s aims (in Graham the claimant was injured in an act not directly connected with any work activity - not satisfied)
- The extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise (in Graham there was no evidence of friction between the claimant and assailant in the workplace prior to the incident - not satisfied)
- The extent of power conferred on the employee in relation to the victim (in Graham the assailant was not senior to the claimant, they had equal positions - not satisfied)
- The vulnerability of potential victims to the wrongful exercise of the employee’s power (in Graham the claimant had no special vulnerability compared to any other employee in the bodyshop - not satisfied).
The Court of Appeal also swiftly dismissed the claimant’s submission in relation to the employment contract as having no influence.
This is an important point for defendants as a finding otherwise would effectively penalise employers who diligently impose health and safety requirements on their employees.
Taken a step further, this would potentially impose effective strict liability as in all cases of workplace violence the assailant will be in breach of his or her employment contract - whether it has express or implied terms.