Vicarious liability for workplace violence | Risk info | Large | Business | Zurich Insurance

Vicarious liability for workplace violence

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Claims involving workplace violence can involve difficult issues of fact and law.

In Graham v Commercial Bodyworks Ltd [2015] EWCA Civ 47 the Court of Appeal has provided further incremental guidance on claims of this type. The claimant appealed from the earlier dismissal of his claim in Cambridge County Court. His appeal was dismissed.


The defendant business is a vehicle bodyshop. The claimant was employed as a bodyshop technician.

The claimant regularly worked with another bodyshop technician who he knew well, in and out of the workplace. Initially a situation of what would historically be described as ‘horseplay’ developed between the two men in the bodyshop.

This quickly developed into a situation which got out of hand (and amounted to an assault on the claimant) when his friend sprayed his overalls with thinners and applied the flame of a cigarette lighter.

It is unlikely that the friend intended to harm the claimant, but that is what happened, with the claimant sustaining more than 30% burns. At first instance, the court accepted the defendant’s evidence that it had proper procedures in place for the control of thinners; it properly trained its employees and bound them contractually to observe the health and safety requirements imposed on them.

Consequently, the pleaded allegations of multiple breaches of statutory duty and common law negligence failed.

The court also determined that the defendant was not vicariously liable for the actions of their employee who had injured the claimant.

The court determined some issues in relation to quantum that would have resulted in total damages in the sum of £240,000, had the claimant been successful.


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 [2002] 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). 

They are:

  • 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.


Assualts at work between employees should not result in vicarious liability on the employer where they are not directly connected with the work.

Evidence of friction in the workplace (e.g. regular violent 'horseplay' about which the employer does nothing) will likely prevent a defence.

Ewan Gardiner

01204 677310

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