• In the case of Hawley v Luminar 2006 EWCA civ 18, a nightclub was vicariously liable for the acts of a doorman who was supplied to it under an agreement for the provision of security services since the club had control not only over what the doorman did but also over how he was to do it.
  • An assault by the doorman on a member of public caused an accidental bodily injury for the purposes of the employer’s public liability insurance.

Facts of the Case

  • L and F, (the appellants) appealed against a decision that a doorman supplied to a nightclub was deemed to be a temporary employee of the nightclub or the purposes of vicarious liability.
  • L operated a nightclub and contracted with a supplier (S) for the provision of security services including doormen.
  • A doorman (W) supplied to the club under that agreement assaulted a member of public (C) and was later convicted of grievous bodily harm.
  • C sued D and W’s employer and L as his “temporary deemed employer”.
  • C claimed that S and L were liable for W’s tortious act.
  • S had gone into liquidation and C obtained a judgment in default against it.
  • S was covered by insurance issued by F but F refused to indemnify S.
  • The judge at first instance held that L was vicariously liable because they had sufficient control over W to make him a temporary deemed employee.
  • He also found that C’s bodily injury was “accidental” within the meaning of F’s policy even though W had deliberately punched C intending to do him serious harm.
  • The judge gave judgment against L and declared F was liable to indemnify S.
  • The judge assessed S’s contribution under the Civil Liability (Contribution) Act 1978 nil.
  • L submitted that the judge had been wrong to find that W was a temporary employee fo L and that he had been wrong to find a nil contribution against S.

Issues in Hawley v Luminar 2006 EWCA civ 18

  • Did vicarious liability include no fault on the part of the employer?
  • Was the first or second defendant vicariously liable

Held by Court of Appeal

  • Appeal dismissed

Hallett LJ

  • The appeal was dismissed vicarious liability required no fault on the part of the employer or in the instance case the deemed employer.

“The burden of showing that responsibility does not remain with the general employer is on the general employer and is a heavy on” [28]

“The extent to which an organisation can control another’s employee will obviously be relevant to the question of how much the employee has become embedded in that organisation. Every case is fact specific and many factors may be relevant. The question of control may not be wholly determinative, but, for as long as Mersey Docks remains the authoritative decision on when responsibility for an employee’s tortious acts may pass from a general employer to a “temporary deemed employer”, the question of control remains at the heart of the test to be applied.” [82]