Vicarious liability for bouncers deemed "temporary employees" of nightclub
A firefighter was savagely beaten by security on the door at Luminar’s (the first defendant) nightclub. All security were employed by the second defendant ASE who had contracted services with Luminar. A case against them would have been straightforward and judgement was entered but they had gone into liquidation.
Permission was therefore sought to bring in a third defendant, an underwriter, to meet the insurance policy of ASE for “accidental injury“ caused by them, enforcing rights under the Third Party (Rights against Insurers Act) 1930.
The Judge considered Mersey Docks Harbour Board -v- Coggins and Griffith 1947 AC 1 was the closest case in point on whether ASE employees could be considered temporary deemed employees of Luminar ( Lister (HL) was cited too on vicarious liability)
The issue was one of control held by Luminar over the doormen supplied by ASE. Here the nightclub, through their manager – on her own evidence, had the last word over ASE door supervisors on admission, ejection, dress code and door policies and she was able to instruct them directly without going through the head doorman. She had control over their decisions and conduct. ASE only controlled who turned up to work.
Moreover the council license and registration scheme imposed rules on licensees as to the conduct of doormen, whether or not employed by them. It did not matter the contract between the two stated ASE employees were not to be treated as Luminar employees. It followed Luminar were vicariously liable for ASE employee’s actions as temporary deemed employees.
(It was also held the ASE insurance policy covered the assault despite the wording covering ‘accidents’).
Hawley -v- Luminar Leisure (1), ASE Security Services (2), David Preston Mann (underwriters) (3) (2005) EWHC 5(Queens Bench), 10 January 2005.
Carer tripping at private home
The claimant’s representatives conceded the Workplace Regulations could not apply as they excluded private dwellings .
However they succeeded in common law negligence against the council who employed the claimant.
The council had risk assessed the premises, the steps and lighting. They said that was enough at common law. The owner of the house failed to attend Court to back up evidence she had given that the claimant had been warned to wave her arms to set off security lighting so as to see her way out . Therefore the claimant’s evidence that the owner had told her to stay close to the wall to avoid detection by lighting was uncontested.
The defendant’s witness – the social care manager – accepted that, if lighting was insufficient, they would have provided torches and spoken to the owner to put sufficient lighting in. The Judge concluded that the employer had a duty to carry out the risk assessments and could not delegate that duty to the owner to provide the warning and instructions on how to operate the lighting and negotiate the steps.
The post-accident risk assessment and meeting between the employers and the owner and warning letter of instructions to employees to wave their arms so as to set off light was important to consider.
No contributory negligence as she had left in total darkness despite knowing of the danger from previous visits .
A 55 per cent success fee was accepted.
Ayres -v- Warwickshire CC, 10 January 2005, HH Judge Rundell, Warsall County Court