Rory Holmes obtains strike out/summary judgment of workplace assault claim
Instruction
Rory Holmes acted for Rotala PLC (“Rotala”). He was instructed by Mark Hammerton of Keoghs, and Simon Hennigan of Allianz UK.
Facts
Rotala provided commercial bus services in the UK. In May 2018 a physical altercation took place between the Claimant and the general manager of Rotala’s hub in Avonmouth, Bristol. Although the two men were previously known to each other from a domestic setting, the physical altercation took place at the Avonmouth premises during regular working hours. The Claimant alleged that the physical altercation gave rise to serious maxillofacial injuries requiring significant time off work, and he pleaded the claim in excess of £200K.
Claimant’s case
The Claimant alleged that Rotala were primarily liable for having permitted and/or having failed to prevent its employee carrying out the assault. Further, the Claimant alleged that words spoken prior to the altercation indicated that the Rotala employee was acting in the capacity of general manager at the material time, and that Rotala were therefore vicarious liable for his tort.
Primary liability
Rotala sought strike out on the basis that the primary liability allegations were frivolous, and that the Claimant had failed to plead necessary primary facts pursuant to PD3A.1.4.
The Claimant opposed strike out on the basis that his pleading was sufficient, or if not, that he ought to be granted an opportunity to amend.
HHJ Ralton found that the allegations of primary liability were bald allegations, and that the Particulars of Claim therefore fell foul of CPR 16.4. In the absence of any suggestion from the Claimant that facts supporting the case would be found elsewhere, he had “no hesitation in concluding that the strike out test [was] met” rather than permitting the Claimant an opportunity to amend the case.
Vicarious liability
Rotala sought summary judgment on grounds that: (1) this was a clear-cut case where the Court could safely determine the issues on a summary basis; (2) account should be taken of the entirety of the dispute between the two men, and (3) the dispute was in truth personal in nature, which meant that the employee was acting ‘on a frolic of his own’ at the material time [following Lister v Hesley Hall, Weddall v Barchester Healthcare and Various Claimants v WM Morrison Supermarkets].
The Claimant opposed summary judgment on grounds that: (1) the fact sensitive nature of vicarious liability claims necessitated nuanced findings of fact following a Trial, and (2) the employee’s alleged use of words such as ‘trespasser’ and/or ‘get off my site’ indicated that he was acting in his capacity as general manager and furthering his employer’s business at the material time [following Weir v Chief Constable of Merseyside Police, Bellman v Northampton Recruitment Ltd, and Mohamud v WM Morrison Supermarkets plc].
In its determination of the summary judgment application, the Court applied the “close connection” test as recently clarified by the Supreme Court in Various Claimants v WM Morrison Supermarkets. Having charted the relevant case law, HHJ Ralton placed emphasis upon: (1) the previous personal dispute between the two men; (2) the personal reasons for the Claimant’s attendance at the premises on that day; and (3) the absence of any connection between the alleged tortfeasor’s field of activities and the alleged assault. HHJ Ralton found that this was a very clear case of an alleged tortfeasor acting on ‘a frolic of his own’, and that any argument of a connection between the alleged assault and the field of activities was ‘tenuous in the extreme’.
