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Legal case

Not quite last orders for vicarious liability

In Kennedy v Sheldon the courts considered whether a brewery should bear responsibility for an assault on a customer by the husband of a pub tenant

The tenant of a tied pub was recently found not to be vicariously liable for the acts of its contractor operating the pub, or her husband, in what is another stark judicial reminder that the doctrine of vicarious liability is still evolving and heavily fact-dependent. 

In Kennedy v Sheldon Inns Limited (t/a The Kings Arms) 2022 WL 18144066, the claimant suffered a serious head injury as a result of an assault by Mr Johnstone (‘Mr J’) whose wife (‘Mrs J’) had contracted with the defendant Sheldon Inns Limited (‘SIL’) to operate the pub which SIL leased. Notwithstanding the claimant’s inability to recall the details surrounding the incident, the first instance judge found that, whilst something had happened in the pub to cause Mr J to forcefully persuade the claimant to leave and then later to prevent his re-entry giving rise to the assault, there was nothing to render Mrs J legally responsible for those actions. She had only briefly been involved in the initial disagreement with the claimant and had taken no part in the assault itself, which had not been foreseeable to her. The judge rejected the contention that the dealings with the claimant should be seen as one long continuous tort in which Mrs J had briefly been involved at the outset. 

There having been no relationship at all between Mr J and SIL, and no evidence that SIL had ratified his involvement in the running of the pub, it was found that there was no basis on which SIL could be vicariously liable for the tort he committed. Consequently, the claimant’s claim was dismissed. The judge also rejected an ingenious argument, lacking in any existing judicial authority, that somehow Mrs J could be vicariously liable for her husband’s tort and through a chain of liability, SIL should in turn be liable for her. 

The case is interesting as HHJ Ralton went on to consider whether in theory SIL could be vicariously liable for the actions of Mrs J, had she been found to have been involved in the assault. Rather than Mrs J being appointed as SIL’s agent or manager, it was clear from the ‘Contract for Management Services’ between SIL and Mrs J that she was running her own independent business from the premises. The role of SIL did not really extend beyond making the functioning premises of the pub available and the supply of drink for sale by Mrs J to the public. Whilst SIL preserved some contractual entitlements such as requiring the pub to be open during normal opening hours and requiring Mrs J to reside on site, she was generally free to conduct her business and provide her own labour as she saw fit. The hiring, firing and paying of any staff (together with arranging EL insurance for any staff engaged) was a matter for Mrs J. The admission or exclusion of any customers was a matter for her. Consequently, the judge found that Mrs J was carrying on her own business from SIL’s premises rather than satisfying the first stage of the test in Barclays Bank v Various Claimants, requiring Mrs J and SIL to be in a relationship “akin to employment”. Had Mrs J been the manager of the pub, appointed under different contractual terms, then the judge was prepared to accept that any assault occasioned by Mrs J as part of managing customers’ entry to the pub would have been sufficiently connected to her relationship with SIL to arguably satisfy the second stage of the Barclays test for vicarious liability.

The judge in this case was able to reach a decision notwithstanding the paucity of evidence at the final hearing. In addition to the claimant’s lack of memory, only heavily pixelated CCTV footage was available for the benefit of the court and only a written statement and hearsay notice were adduced from Mrs J due to her being imprisoned, with no explanation offered to explain why a production order had not been obtained to facilitate her participation. The case acts as a stark reminder that original disclosure should be retained and made available, and that little weight will be given to hearsay evidence adduced in writing. 

The claimant failed to successfully argue the imposition of vicarious liability across any of the various relationships governing this case. To this extent, this decision can be seen as a further example (following Barclays) of the courts being wary of either imposing vicarious liability for the actions of contractors or fabricating (quasi) employment relationships where they do not exist. However, it is important that every term and aspect governing the particular relationship between tortfeasor and defendant is analysed before confidently asserting that vicarious liability will not arise, given that the nature of such relationships are so fact-specific and even small factual variations can support the existence of a different relationship entirely, which might bring the doctrine of vicarious liability back in to play. 

Our specialist team of casualty lawyers has been successfully defending civil claims against commercial organisations and their insurers for many years.

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