Fennelly v Connex South Eastern Ltd: CA 11 Dec 2000

A ticket inspector, following an altercation with a passenger during which strong words were exchanged, had held the passenger in a headlock. The court had found this to be within the course of his employment so as to make the employer vicariously liable.
Held: The company’s appeal failed. Buxton LJ said: ‘His job was to deal with the public in relation to tickets and to interfere with their progress if they did not produce such a ticket; in other words to deal with the public in that way, none of that was Mr Sparrow able to do without the authority of his employer. His employer was not able to do that, or to have Mr Sparrow do it on his behalf, had he not had statutory authority under the Railway Managements Acts. Absent Mr Sparrow’s status as a ticket inspector he would have had no right at all to call after Mr Fennelly and to block him in this way or otherwise to impede his progress. Had an ordinary fellow passenger done what Mr Sparrow did in checking tickets it would have been an assault.
Against that background I consider it artificial to say that just because Mr Fennelly was walking on, what happened next – immediately next – was divorced from what Mr Sparrow was employed to do. The neck lock sprang directly out of the altercation. The altercation was being conducted by Mr Sparrow on behalf of his employer, dealing as he thought appropriate with a passenger who was not reacting as the employer would have wished; it would not have occurred without Mr Sparrow’s power to inspect tickets when he was on his employers’ premises. It is difficult to say in any realistic terms that this was not all one incident. That is underlined by the finding that the judge made about what Mr Sparrow said when he was actually putting Mr Fennelly into the neck lock. When he said, as the judge found and as I have already indicated, words to the effect of ‘I have had enough of this’, he was referring back to the aggravation and obstruction that Mr Fennelly had caused him when he was looking at his ticket.’
Schiemann, Buxton LJJ
[2000] EWCA Civ 5568, [2001] IRLR 186
Bailii
England and Wales
Citing:
CitedCanadian Pacific Railway Co v Lockhart PC 1941
When considering the imposition of vicarious liability, ‘the first consideration is the ascertainment of what the servant is employed to do.’ (Lord Thankerton) and ‘It is clear that the master is responsible for acts actually authorised by him: for . .
CitedKooragang Investments Pty Ltd v Richardson and Wrench Ltd PC 27-Jul-1981
(New South Wales) An employee of the defendants was authorised to carry out valuations, but he negligently carried out an unauthorised private valuation.
Held: In doing so he was not acting as an employee of the defendant company. The company . .

Cited by:
CitedWeddall v Barchester Healthcare Ltd CA 24-Jan-2012
Parties appealed against judgments dismissing their claims of vicarious liability as against their employers after assaults by co-employees.
Held: Appeals were dismissed and allowed according to their facts.
In one case, one employee . .
CitedMohamud v WM Morrison Supermarkets plc SC 2-Mar-2016
The claimant had been assaulted and racially abused as he left a kiosk at the respondent’s petrol station by a member of staff. A manager had tried to dissuade the assailant, and the claim for damages against the supermarket had failed at first . .

These lists may be incomplete.
Updated: 03 March 2021; Ref: scu.428032