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    Even Gangster Bosses could be liable!

    In the Irish Supreme Court judgment in Lynch v Binnacle Ltd t/a Cavan Co-Op Mart [2011] IESC 8 on 9 March 2011 the appellant was employed as a drover at a cattle mart operated by the respondent company, and his duties included helping to operate a weighbridge system. At the time that the accident occurred two other workers, who had been operating the weighbridge system with the appellant, had temporarily absented themselves to attend to their own affairs at the mart. This meant the appellant had to enter a pen in which a bullock was present in order to open the gate into the weighbridge, something he would not have had to do had his other co-workers been present. The appellant suffered a severe direct kick to the groin from the bullock, which ultimately resulted in the loss of his right testicle.
    The issue arose as to whether the employer was vicariously liable for the acts of the other employees in failing to present to ensure that no injury occurred to the appellant.

    What is Vicarious Liability?
    Vicarious liability refers to a situation where someone is held responsible for the actions or omissions of another person. In a workplace context, an employer can be liable for the acts or omissions of its employees, provided it can be shown that they took place in the course of their employment.

    The Court`s Decision


    Round Hall

    The Round Hall, The Four Courts

    Noting that, while the other drovers’ absence was unauthorised, Denham J stated that it clearly was known to the respondent that drovers did absent themselves from work on occasion and no evidence had been shown to support the existence of any system of supervision by the respondent to ensure against any such unauthorised absences. Their absence was so connected with the act they were authorised to do that the respondent was vicariously liable for the unsafe system of work which resulted as to result in an unsafe system of work.
    It was noted however that the appellant, an experienced drover, had not asked the two other drovers to remain and nor had he sought any assistance whatsoever. Thus the appellant was found to have contributory negligence of 33%.

    Acting in the course of their employment
    Generally, for an employer to be liable for the acts of its employees, the employee must be acting in the course his employment. That is, there must be a connection between the negligence of the employee and the duties which the employee was undertaking at the time. Sometimes however that close connection can become blurred.

    Mohamud v Wm Morrisson Supermarkets
    For instance, in the UK case of Mohamud v Wm Morrisson Supermarkets [2016] the UK Supreme Court has held the defendant company liable for the actions of an employee in circumstances where it was arguable that the employee was not acting in the course of his employment when he assaulted the claimant.


    Supreme Court

    UK Supreme Court

    The claimant attended a Morrison`s petrol station in Birmingham. While there he asked if it would be possible to print some documentation from a USB stick. Mr. Khan, an employee who was working behind the counter, used racist and rude language and refused the claimant’s request before asking the claimant to leave. As the claimant left, Mr. Khan followed the claimant to his car and opened the passenger door. The claimant asked Mr. Khan to close the door, at which point Mr. Khan launched a serious assault on the claimant, knocking him to the ground and punching and kicking him despite Mr. Khan’s supervisor telling him to stop.

    While there was no doubt that Mr Khan was at work at the time, was he acting in the course of his duties when he assaulted the claimant?

    The Court`s Decision
    The UK Supreme Court held that Morrisons was vicariously liable for the actions of Mr. Khan in attacking the claimant. The Court found that Mr. Khan’s job was to serve customers and to respond to their enquiries and, although Mr. Khan’s behaviour was a gross abuse of his position, his actions were within “the field of activities” / duties assigned to him in his employment. The court also held that there was an “unbroken sequence of events” which led to the attack.

    The Court further held that Mr. Khan’s motive was irrelevant: he was entrusted to deal with members of the public during his employment. The Court therefore held Morrisons responsible for Mr. Khan’s abuse of that trust.

    Employers be warned
    One might have thought that the Court would have found this assault to be outside the course of employment. How could an employer anticipate such aggression by its employee? The approach taken here was to consider what was just in the circumstances, and the Supreme Court was at pains to point out that each court will need to make an evaluative judgement in each case. Nonetheless, the danger, from an employer’s point of view, is that any link to an employee carrying out his normal duties will be sufficient to establish that the employer should be held liable.

    Brian Morgan

    Morgan McManus Solicitors