Wednesday, 15 February 2012

Weddall v Barchester Healthcare Ltd & anor [2012] EWCA Civ 25: frolicking

When is an employee not an employee?  When they're not at work. Sometimes.  When are they at work?  When they are working.  Or sometimes not working.


It's simple enough, when one works out what the problem is.  Someone gets injured by someone else, they sue; they need deep pockets to pay damages.  The average individual is not going to be able to afford it.  But their employer might, especially as the employer will be insured; the deepest pockets of all are those of the insurance company.

So the injured party will do their damnedest to get the employer on the hook.  And the court often helps them.  Because it's all about justice.  Someone is injured; someone should pay.  Should that someone be the injured party - who is innocent and hurt - or the employer - who MAY be innocent but certainly IS unhurt?  Besides which, shouldn't the employer notice it has idiot employees?

The court has therefore developed various doctrines to put an employer on the hook.  There are generally three categories.  One, the employee was doing something for the employer.  Delivering material, operating a crane, whatever.  That's easy enough; if they do that negligently, then their negligence is their employer's.  Not controversial.

A second is if they're on a 'frolic of their own'.  They're doing something their employer has told them not to; it's nothing to do with work.  They're drunk as a lord and heading for a party in the company van.  The employer will not be liable.

There is the third category.  What if they're frolicking at work?  Some bright spark has the idea of human ten-pin bowling in the factory, for example.

This is where it gets tricky.

And this is where the two cases here come in.  Mr Weddall is the headliner, he was a manager at a care home needing someone to fill a shift; he rang a chap called Marsh to suggest he come in for a bit of overtime.  Marsh did come in, basically to punch Mr Weddall's lights out and announce he was quitting.  A large amount of drink was involved.

The second case heard with it involved another manager, Mr Wallbank, who ran his own firm and ended up suing it (remember the insurer would pick up the tab).  One of his employees = Brown - bodged a manufacture load and Mr Wallbank had a go at him, and started to help.  Brown's reaction was to shove Mr Wallbank through a table, chipping a vertebra.

So the question in these cases was whether the employer was responsible for the actions of their employee.  The court of appeal found Mr Weddell's case easier to deal with.  Marsh was not at work when he was called; he was not at work when he turned up.  He had never said he would work the extra shift.  Indeed the last thing he wanted to do was work it.  His punching of Mr Weddell was entirely his own decision, it just happened to be that it took place at their place of work.  Mr Weddell's claim was against Marsh alone - there was no employer liability.

The other case was trickier.  It looked similar, an unprovoked battery, but there were some crucial differences.  Brown was still at work, and, what's more, was undertaking a task of work at the time; Mr Wallbank was lifting the load of stuff that had to be put into an oven.  Brown's attack was in a work environment.  The attack, it was found, was because he objected to Mr Wallbank's orders to him; the attack was directly caused by something arising from work.  That was a close enough connexion to work to make his employer - Mr Wallbank's company, remember - liable.  Had it been a "mere" random battery, perhaps Mr Wallbank used a football taunt, for example, then perhaps the employer would not have been liable; in the circumstances, the Court of Appeal decided it was just about close enough to employment to count.

The moral of the story?  Try to get injured at work by someone working.  (NB: not legal advice.)

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