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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Fennelly v Connex South Eastern Ltd. [2000] EWCA Civ 5568 (11 December 2000) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/5568.html Cite as: [2000] EWCA Civ 5568

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BROMLEY COUNTY COURT
(HIS HONOUR JUDGE CRYAN)

		Royal Courts of Justice Strand London WC2
		11th December 2000

1. LORD JUSTICE SCHIEMANN: Buxton LJ will give the first judgment.
2. LORD JUSTICE BUXTON: In this case the claimant, Mr Patrick Fennelly, was assaulted by a Mr Keith Sparrow, a ticket inspector employed by the defendants, when Mr Fennelly was a passenger at Bromley South Railway Station upon the railway system operated by the defendants. The case raises again, and the issue is, whether that assault on Mr Sparrow's part was committed by him in the course of his employment by the defendants. It was found by the judge, and it is not disputed, that an assault had indeed occurred.
3. Because the case demands a close inspection of what occurred during this incident it is necessary to go to the findings of fact made by the learned judge; and I will say straightaway that the judge heard a good deal of evidence about what had occurred in the course of the comparatively brief incident that he was concerned with. He clearly went into that evidence with punctilious care and made findings about it. For that reason I shall not seek to summarise what the judge said because in so doing I may distort it, but it will be necessary to repeat a number of his actual findings. His findings started on page 3 at line 20. Having indicated that Mr Fennelly had purchased a ticket and passed through the ticket barrier where Mr Sparrow was inspecting and collecting tickets, the judge continued as follows:

"As the claimant made his way towards the top of the stairs Mr Sparrow called out after him: 'Where is your ticket?' The claimant heard this. He looked back, but for whatever reason continued to walk on. Mr Sparrow followed him swiftly down the stairs. An exchange then took place in which the claimant, much less than sensibly, was rather offensive to Mr Sparrow. He was asked to show his ticket but refused to do so on the basis that he had already shown it to another inspector. He carried on walking. In the context I do not regard that response as reasonable. ... Mr Sparrow responded by barging past the claimant, requiring him to stop by standing in front of him. He again demanded to see the ticket, this time angrily. Mr Fennelly produced the ticket, whether, as Mr Sparrow says, he pushed it in his face so close that he could not read it I cannot say, but I accept that Mr Sparrow snatched the ticket the better to look at it. This was also discourteous, but to a degree excusable. At that point Mr Fennelly said words to the effect 'there is no need for that, do not be a fool'. This was offensive language having regard to the fact that it was Mr Fennelly who was acting unreasonably and Mr Sparrow who was doing his duty, if perhaps a little robustly."

4. It should be said, in fairness to Mr Fennelly, that, as the judge made clear, although some of the judge's observations about Mr Fennelly's conduct and language might appear to be critical of him, he was at the time of this incident suffering the aftermath of a serious personal tragedy within his family; and the judge accepted that his conduct on this occasion might well not have been that which he would have adopted had he not been under those pressures. However, of course, Mr Sparrow was not to know anything of that.
5. The judge continued with his findings as follows:

"I find that Mr Sparrow responded to being called a fool with words to the effect that if Mr Fennelly said that again, he would punch him in the face. There was more conversation about the fact that Mr Sparrow ought to have checked with his colleague as to whether a ticket had been shown. That was within a short compass of time. The ticket was handed back by Mr Sparrow to Mr Fennelly who went on his way. As Mr Fennelly put it, 'having received my ticket I began to walk down the steps and suddenly was pulled'. Mr Sparrow used his right arm to put Mr Fennelly in a headlock and drag him down a few steps whilst continuing to hold Mr Fennelly's head near his chest in the headlock. I am satisfied that he said words to the effect of 'I have had enough of this'. I reject the suggestion that the claimant pushed Mr Sparrow then or at all. I accept Mr Adams' evidence"

6. - I interpose Mr Adams was a witness independent of both parties by whom the judge was clearly impressed -

"that it was a noticeable headlock. It went on long enough for damage and it was too long for a correction of balance as described by Mr Sparrow. It was an assault."

7. These were the findings of the judge as to what occurred. The judge made no specific finding as to the length of time occupied by this incident. It is plain, however, from what he said and from his description of it that it was an incident that occupied only a short period of time. Regrettably the video pictures that would have revealed clearly that aspect of the case did not in fact print out so that they could be properly read by the judge. We are told by Mr Moxon Browne for the appellant, that Mr Adam's evidence was that the incident took as a whole no more than 20 seconds. I am bound to say that does sound as if it was something of an underestimate; but that a reliable witness could think that reinforces the overall impression that this was a brief incident.
8. Against those findings the judge turned, as I turn, to the question of whether what Mr Sparrow did, admittedly an assault, was done in the course of his employment as a ticket inspector with the defendant railway company. The judge referred to the test that has been set out in many editions of Salmond & Heuston's Law of Torts and has received authoritative citation not least in the Privy Council case of Canadian Pacific Railway Company v Lockhart [1942] AC 591, the opinion delivered by Lord Thankerton. It would be appropriate to read the whole of that test. An act is done in the course of employment if:

"... it was either (1) a wrongful act authorised by the master, or (2) a wrongful an unauthorised mode of doing some act authorised by the master. It is clear that the master is responsible for acts actually authorised by him for: liability would exist in this case, even if the relation between the parties was real or one of agency, and not one of service at all. 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."

9. That test is discussed by the learned editor of Clark & Lindsell on Torts in paragraph 5-24 of the recent 18th Edition in terms that, again, have not differed very much over the years. Having noted that the test, as indicated by Salmond, is in terms of the acts authorised by the master the learned editor then goes on to say this:

"Lord Wilberforce in Kooragang Investment Pty Ltd v Richardson and Wrench Ltd [1982] AC 471 noted that in recent years the tendency has been toward more liberal protection of third parties. So, in establishing a particular employee's 'course of employment', the court should not dissect the employee's tasks into component parts but should ask in a general sense: 'what was the job at which he was engaged for his employer?' ... Sometimes the court will use the phrase 'was the employee on a frolic of his own'?, to conclude that the tort was not committed during the course of employment. This involves a finding that the employee has so clearly departed from the scope of his employment that the employer will not be liable for his acts."

10. In support of that formulation the learned editor refers in a case decided by Comyn J, Harrison v Michelin Tyre Co [1985] 1 All ER 918. In that case, with the assistance of distinguished counsel, Comyn J went in very considerable detail into the true understanding of the test of course of employment. He formulated the matter thus:

"Was it so divergent from the employment as to be plainly alien to and wholly distinguishable from the employment?"

11. That was, in the judge's view, to be determined by asking whether a reasonable man looking at all the circumstances think that the incident was part and parcel of the employment. The approach as formulated by Comyn J in Harrison v Michelin Tyre is of importance because it was accepted in the terms that I have just stated as being a direct test of whether an act was in the course of employment or not, in this court in the judgements of Ward LJ and of my Lord, Schiemann LJ, in Vasey v Surrey Free Inns Plc [1996] PIQR 373, the holding that I have just referred to being found on page 379.
12. It is of some interest also that Comyn J was assisted to the formulation he adopted by reference to the well known and earlier case of Century Insurance Co Ltd v Northern Ireland and Transport Board 1942 AC 509. He described the facts of that case as "almost unbelieveable". What happened, putting it shortly, was that the driver of a petrol tanker went to fill his tank at a garage and, whilst he was so doing, took it upon himself to light a cigarette and throw the match on the ground, with predictable consequences. Comyn J said:

"One cannot, I venture to think, imagine a more unauthorised act by any employer, a more reckless act by any employee..."

13. Nonetheless Lord Wright at page 519 said this:

"The act of a workman in lighting his pipe or cigarette is an act done for his own comfort and convenience and, at least generally speaking, not for his employers benefit. But that last condition, however, is no longer essential to fix liability on the employer: Lloyd v Grace Smith & Co [1912] AC 716 The duty of the workman to his employer is so to conduct himself in doing his work as not negligently to cause damage either to the employer himself or his property or to third persons or their property..."

14. That case seemed to Comyn J to indicate a broader view than one of mere authorisation in the narrow sense. It is also of interest that Lord Wright was helped to the view that he took in Century Insurance by the case of Lloyd v Grace Smith which is well recognised as having a marked departure, in terms of the understanding of the vicarious liability, from the narrow approach of course of employment that had previously existed. That was the case where a fraudulent person in a solicitors office deceived the plaintiff in the course of his employment, but the employer nonetheless was held liable for the fraud. I refer to the cases I have just mentioned not to suggest that they cast direct light on the case before us - I will come shortly to the cases which are to be argued to do that - but to demonstrate that the idea of course of employment requires one to look at the job being done in general terms by the employee, and not narrowly to divide each step and task that he performs and then ask oneself whether each separate step was so authorised.
15. I turn now to what the judge said about authorisation. He directed himself so far as course of employment is concerned in the following terms:

"I must ask what it was that Mr Sparrow was authorised to do? He was there to protect his employer's revenue. He was authorised to check tickets. He had authority to block the onward movement of passengers by standing in front of them or the like. If necessary he could ask them to leave the station. What he did until the assault was arguably within his authority. Did the attack on Mr Fennelly constitute merely a wrongful and unauthorised mode of doing the duty he was authorised to do, or was it done for his own purposes and not in his master's interests."

16. Having set that as the question that he had to ask himself he delivered the following answer:

"I have concluded that the task which the defendant had authorised Mr Sparrow to do had concluded, albeit just. According to his own evidence Mr Fennelly was walking on. The defendants, Connex South Eastern, have no interest in what Mr Sparrow did next. He was not by then carrying out any task which they authorised or wanted him to do. By way of analogy he was not driving for them, albeit badly. He was not ejecting a passenger in accordance with his authority, albeit violently. He was not protecting their property by teaching someone a lesson. He had fulfilled and concluded his authorised role. He had become personally angry and was pursuing his own ends. The defendants cannot be said to be vicariously liable for that. He was doing nothing that he was authorised to do. He was not going about his employer's business but his own."

17. I have to say that, first, the judge's formulation of the question that he had to answer in the circumstances of this case placed too narrow an emphasis on the concept of authorisation. Looking at Mr Sparrow's job and employment in the circumstances of his obligations for dealing with the public, in my judgement a broader approach is required. His job was to deal with the public in relation to tickets and to interfere with their progress if they did not produce such a ticket; in other words to deal with the public in that way, none of that was Mr Sparrow able to do without the authority of his employer. His employer was not able to do that, or to have Mr Sparrow do it on his behalf, had he not had statutory authority under the Railway Managements Acts. Absent Mr Sparrow's status as a ticket inspector he would have had no right at all to call after Mr Fennelly and to block him in this way or otherwise to impede his progress. Had an ordinary fellow passenger done what Mr Sparrow did in checking tickets it would have been an assault.
18. Against that background I consider it artificial to say that just because Mr Fennelly was walking on, what happened next - immediately next - was divorced from what Mr Sparrow was employed to do. The necklock sprang directly out of the altercation. The altercation was being conducted by Mr Sparrow on behalf of his employer, dealing as he thought appropriate with a passenger who was not reacting as the employer would have wished; it would not have occurred without Mr Sparrow's power to inspect tickets when he was on his employers' premises. It is difficult to say in any realistic terms that this was not all one incident. That is underlined by the finding that the judge made about what Mr Sparrow said when he was actually putting Mr Fennelly into the necklock. When he said, as the judge found and as I have already indicated, words to the effect of "I have had enough of this", he was referring back to the aggravation and obstruction that Mr Fennelly had caused him when he was looking at his ticket. In my judgement therefore there are strong reasons in this case for thinking that the judge looked at the matter, as was said at one point of the argument, in too nice a way, and thus described the incident in an artificial way.
19. We were taken to a number of authorities by Mr Pearce O'Higgins on behalf of the respondent which he said demonstrated that the judge had taken the correct approach and was right to approach the case as he did. They all involved assaults of one sort or another by employees upon customers. The first was a case in this court, Daniels v Whetstone Entertainments and Allender [1962] 2 Lloyds Rep 1. Here, there was an altercation between a steward (as they were called in those days) and a customer of a dance hall. One assault was inflicted upon the customer within the hall and for that the employer was held by this court to be liable. A further assault took place outside the hall after the customer had left and was standing apparently innocently outside after the steward had left the hall and gone off for, at least a short time, in search of another man involved in the case. The second assault was held not to be laid at the door of the employer. That, of course, is a demonstration that not every assault that occurs after an altercation will be said to be in the course of employment. I do not find that case at all helpful for this reason, that an overwhelming fact upon which this court relied in reaching its conclusions was that after the first assault and everyone had gone outside, the manager of the dance hall himself intervened and told the steward in no uncertain terms that he was to return inside the hall and get on with what in fact were his duties. I have, I fear, somewhat paraphrased, or indeed possibly may have invented what the manager said, but that was the clear burden of the evidence - that the steward was to go back inside. He disobeyed that order and it was after he disobeyed that order that he hit the plaintiff. Leaving aside all questions of authority and prohibition, that intervention on the part of the manager, added to the fact that, effectively, the original row had calmed down and the steward was seeking to revenge himself, makes the case quite different from a case such as the present; it marked a clear divide between the assault that involved acting in his employment and the assault which did not.
20. The second case is closer to our case, though I have to say, on reflection, not very close to it; that is Keppel Bus Company v Sa'ad bin Ahmad [1974] 1 WLR 1082 in the Privy Council. In that case a passenger travelling on a bus had an altercation with the conductor, apparently in respect of the conductor's language towards another passenger. That altercation was apparently prevented by the intervention of other passengers. The person in respect of whom the row had originally started then got off the bus. The conductor began collecting his fares and, whilst he was doing that, he directed an offensive remark to the passenger with whom he had had the original argument. The passenger asked the conductor not to use abusive language towards him, whereupon there and then the conductor hit the passenger with his ticket collecting machine, inflicting serious injury. The trial judge found the conductor was acting in the course of his duty in maintaining order among the passengers and the passenger was interfering with him in the performance of his duty. On that basis he held that the act of assault had been in the course of the conductor's employment. The Privy Council did not agree. It is noticeable, as my Lord pointed out in the course of argument, that the Board differed from the analysis of the facts in terms course of employment that had been adopted by the trial judge and by the Court of Appeal in Singapore. The Privy Council said this at 1085B:

"It may be accepted that the keeping of order among the passengers is part of the duties of a conductor. But there was no evidence of disorder among the passengers at the time of the assault. The only sign of disorder was that the conductor had gratuitously insulted the plaintiff, and the plaintiff had asked him in an orderly manner not to do it again... To describe what he did in these circumstances as an act of quelling disorder seems to their Lordships to be impossible on the evidence... The evidence falls far short of establishing an implied authority to take violent action where none was called for...

Their Lordships are of opinion that no facts have been proved from which it could be properly inferred that there was present in that bus an emergency situation, calling for forcible action, justifiable upon any express or implied authority, with which the appellants could be said on the evidence to have clothed the conductor."

21. In other words it was argued that the judge approached the case on the basis that the conductor had been acting in a disciplinary capacity, or that the conductor had power, as it were, to maintain order amongst passengers, as well as collect fares. He clearly was not acting as a fare collector when he hit the plaintiff, nor on the facts, as seen by the Privy Council, was he acting as a disciplinarian. On those grounds, therefore, he was not acting in the course of his employment.
22. Both of those cases were reviewed in a comparatively recent case in this court, Vasey v Surrey Free Inns Plc, to which I have already made passing reference. The facts were that the plaintiff in that case was refused admission to the defendants' nightclub. In a fit of temper he kicked the door of the club, damaged the glass in it, then left the premises. He was pursued by three members of the defendants' staff, a manager and two doormen. One of the doormen, assisted by the others, struck the plaintiff on the head with a weapon causing serious injuries. It was found that the employees were authorised by the defendants to use physical force if necessary to protect the defendants' property. A claim for damages on grounds of vicarious liability for these assaults was rejected by the trial judge.
23. Having reviewed a number of cases on vicarious liability for assaults, Stuart-Smith LJ, who delivered a judgement with which both Ward and Schiemann LJJ agreed, said this at 377:

"In my judgment, all the evidence here, such as it is, shows that the conduct of the assailants was a reaction to the damage to the door. There is no evidence that related to some private quarrel or incident which occurred subsequently to and unrelated to the performance of the employee's duty. This distinguishes the case of Kepple Bus Co Ltd v Sa'ad bin Ahmad [1974] 1 WLR 1082 where the assault by the bus conductor was occasioned by the plaintiff's protest at his use of bad language to another passenger. It also distinguishes the case of Daniels v Whetstone Entertainments and Allender [1962] 2 Lloyds's Rep 1, where the assault was committed in revenge or retaliation for an injury which the aggressor mistakenly believed to have been committed on him by the plaintiff and where the aggressor disobeyed the specific instructions of the defendants' manager to return to the dance floor. Those are cases where the assailant is acting solely for his own purposes, albeit at a time when he is on duty. Mr Coleman submitted"

24. - that is counsel for the defendants in that case,

"that the only purpose or motivation of the bouncers was to have and enjoy a fight and that was quite unconnected with the servant's duties.

I do not accept that. Not only was the attack so closely related in time and place for it to be the only proper inference that they were reacting to the damage to the door, but the evidence of the plaintiff to which I have referred, makes it plain that they wished to teach a lesson to the person who had caused that damage. That was the sole purpose of the attack. It was, of course, an unlawful and unauthorised manner of carrying out the duty to which I have referred, but I have no doubt that such is what it was. They were not pursuing their own purposes."

25. The facts of each case, it does not need to be said, are different. It would not be right to draw any direct logical conclusion from the way in which this court approached the problem in Vasey v Surrey Free Inns Plc. That case is however illuminating in the approach it takes to the nature of an employee's duty and to the question of whether he is performing that duty when he attacks a person with whom that duty brings him into contact. In our case it seems to me plain that the attack was a reaction to the insults that Mr Sparrow saw to have been inflicted on him by Mr Fennelly. Indeed, as I have said, the judge found that Mr Sparrow said that at the very moment when he was imposing the necklock. On common sense grounds it was, as in Vasey, all part of the same incident. Although the analysis is not directly the same, in the sense that it is not possible in this case to say as clearly as it was in Vasey that the employee was setting out to reassert his or his employers' authority, this case comes sufficiently close to that to make it impossible in my view to say that the course of employment had been departed from and had come to an end at the very moment, the brief second of time, when Mr Fennelly walked away.
26. The judge, as I have said, took too narrow a view of what is to be understood as course of employment. Mr Pearce O'Higgins argues strongly that the argument was principally one of fact and this court would be slow to interfere with a finding of fact. That is of course right, but the finding of fact depends on the statement of the underlying question. The question that the judge asked himself was, in my judgement, artificial and inappropriate in the circumstances of this case. I have already said that I much appreciate the way in which the judge dealt with this case in the sense of findings of fact, and the very clear way in which he found those facts, but, in my judgement he was wrong in the legal conclusion he reached. I would allow the appeal on the grounds I have indicated.
27. LORD JUSTICE SCHIEMANN: I also would allow the appeal on the grounds set out by my Lord. I only add this. Mr Pearce O'Higgins sought to draw a distinction between torts for activities which are also crimes, and torts for activities which do not have this criminal coincidence. He submitted that, where you have a criminal act the client has a remedy against the Criminal Injures Compensation Scheme. In those circumstances it will be wrong to give a judgement in his favour under the Civil Law generally. For my part I see no force in this distinction at all. The rationale behind the imposing liability for torts committed by an employee in these circumstances seems to me to remain exactly the same whether the tort is also a crime or whether it is not. As I have said I agree this appeal ought to be allowed.
28. (Appeal allowed; judgement for claimant for an amount to be decided by the court; defendant to pay costs of appeal to include costs of application and permission to appeal and the defendant also to pay the costs of proceedings in the court below).