Court of Appeal
Vicarious liability for violent contracted bouncers
We reported this case in the Law Bulletin in February 2005.The judgment has now been upheld by the Court of Appeal.
They also considered the new concept of dual vicarious liability against two employers (see the case of Viasystems, Law Bulletin November 2005) but found it did not fit the facts in this case.
A firefighter had been beaten by security on the door at Luminar’s (the first defendant’s) nightclub. All security staff were hired out to Luminar by the agency ASE, the second defendant. 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.
The issue was one of control held by Luminar over the doormen supplied by ASE. Here the Luminar nightclub, through their manager, had the last word over ASE door supervisors on admission, ejection, dress code and door policies and the Luminar manager was able to instruct them directly. She had control over their decisions and conduct.
ASE only nominated who would turn up to work and even then Luminar could reject their suggested staff. The Court of Appeal agreed that the control Luminar had over ASE employees was such as to make the bouncers temporary deemed employees of Luminar for the purposes of vicarious liability.
They found also that level of control made a finding of dual vicarious liability against both defendants unsuitable, as ASE had virtually no control over their employee at all.
The following excerpt comes from a Financial Times report on the case:
“A leisure company has been held liable for the actions of a bouncer at one of its nightclubs even though he worked for a separate business that operated on an outsourced basis. After the Court of Appeal decision yesterday, lawyers said it could have big implications for the leisure sector, its insurers and any industry using contract workers.
Thompsons Solicitors said: ‘This means that an organisation which employs contract workers may be held responsible for their actions while working on the premises, depending on the level of control they retain’.”
Hawley -v- Luminar Leisure (1), ASE Security Services (2), David Preston Mann (underwriters) (3) CA 24 January 2006