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A managing director's drunken assault on an employee was "in the course of employment" rendering the company vicariously liable

The Court of Appeal (COA) has recently decided that a company was vicariously liable for an assault carried out by one of its managing directors on an employee, which left the employee seriously injured.

The High Court dismissed the claim on the basis that the managing director was not acting in the course of his employment when he assaulted the Claimant – it was concluded that there was an insufficient connection between the assault and the position in which the managing director was employed to render the managing director liable and, accordingly, the claim was dismissed.

The COA overturned the High Court’s decision, concluding that when considering whether something is "in the course of employment", it is necessary to view the employment in question broadly and it is wrong to focus on what the employee is expressly authorised to do in their job. The COA confirmed that in applying the test, the court had to make an evaluative judgment in resolving a question of law based upon primary facts found. In this case, the assault occurred during an unscheduled drinking session, which although was not a seamless extension of the company's Christmas party, the managing director had chosen to wear his metaphorical "managing director's hat" by delivering a lecture to his subordinates about his rights as managing director.

Although agreeing with the High Court, the COA pointed out that the facts of this case were particularly unusual, and it should not be taken as authority for the proposition that employers become insurers for violent acts by their employees. Liability will not arise just because there is an argument about work matters between colleagues which leads to an assault, even when one colleague is more senior than another. The combination of circumstances in this case would arise very rarely.

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