VICARIOUS LIABILITY CONSIDERED BY THE COURT OF APPEAL
The Court of Appeal has held that an employer was not vicariously liable for the wrongful actions of its employee who walked into the path of a cyclist on the highway.
In Fletcher v Chancery Supplies Ltd the defendant employer operated a plumbing business with a shop and an office on opposite sides of a road. The employee in question worked at the shop on the same side of the road as the cycle lane. His shift finished at 12 noon on Saturdays but there was evidence that he had extended his working hours to 12.45pm that day by agreement with another employee. At 12.45pm, the employee was crossing the road towards the shop and he stepped out from behind a stationary Transit van and into the path of the claimant, a police officer, who was cycling along the cycle lane. The claimant sustained a significant knee injury. No explanation was given as to why the employee was walking back towards the shop where he worked. As the employee’s shift had been due to finish at 12pm, the employer maintained that he was not acting in the course of his employment when the collision occurred and therefore it was not vicariously liable for his actions. The employee had left the defendant’s employment by the time of the trial and did not give evidence at trial but the court decided that the employer was liable because the employee had been acting in the course of his employment – he had been heading for his employer’s shop and had given the shop address rather than his home address to the police immediately after the collision. He had also been wearing work issue boots and shirt at the time of the accident. The employer appealed.
COURT OF APPEAL DECISION
The Court of Appeal held that the employer was not vicariously liable on the basis that there was no evidence that the employee was still working at the time of the accident. The Court applied the test for vicarious liability as set out in the Supreme Court ruling in Mohamud v WM Morrison Supermarkets (2016). In order to decide whether it would be right to hold an employer vicariously liable, the court had to consider the functions entrusted to the employee and decide whether there was sufficient connection between the employee’s’ wrongful conduct and the position in which he was employed. The employee in this case was a shop assistant and, even if he was at work at the time, it was impossible to know if crossing the road at 12.45pm was sufficiently connected to his work to make it right to for his employer to be held liable. In the absence of testimony from the employee, there was no evidence to suggest his crossing of the road was connected to his job so the trial judge was wrong to hold the employer vicariously liable.