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Knockout punches and vicarious liability

Posted: 27/03/2018

A Channel 4 television documentary, One Killer Punch, brought into the spotlight the criminal implications following late night disturbances where someone has received a single ‘killer punch’ to the head and died or been seriously injured, either from the punch itself or as a result of falling onto an object that has caused the main injury.

Frequently, the injured party in such cases has limited recourse to the civil law for compensation separate from any criminal proceedings the police and Crown Prosecution Service may pursue. If the assailant is simply on a night out or has limited financial means, the only course of action the family can take is to pursue a claim via the Criminal Injuries Compensation Authority, but the procedure does not allow for an applicant’s legal fees to be paid under the scheme so legal representation is not always forthcoming.

Cases where injuries are caused by security guards have different parameters as compensation claims can be pursued. As long as it can be proved that the security staff were acting within the course of their employment, then there is a good chance that their employer will be vicariously liable for their actions. The law on vicarious liability has been tested a number of times and in the case of Mohamud v WM Morrison Supermarkets, the Supreme Court found that, after a supermarket employee subjected a customer to a violent attack whilst visiting the supermarket’s petrol station, the actions of the employee formed an unbroken sequence of events as the assailant had ordered the customer off the premises and then attacked him.

However, just because an assailant was employed and working at the time of the incident does not automatically mean that an employer will be found vicariously liable for his or her employee’s actions. Exceptions include where horseplay is involved, ie if the employee is fooling around and injures another, because strictly speaking that employee is not acting within the course of his or her employment; and actions motivated by private prejudice, such as in the case of Deatons Pty v Flew where a barmaid assaulted a customer with a glass. It was held that the motivation was personal retribution against a customer and vicarious liability against the barmaid’s employer was not established.

Penningtons Manches has been approached recently by a number of clients assaulted by security staff outside nightclubs and similar late night venues. One client was heavily manhandled and face-planted into the ground causing extensive facial fractures and permanent damage to one eye, and another client was hit by a bouncer with a single punch and was in a coma for over a month. Six months after the assault, the client has still not regained the ability to walk or communicate effectively.

The law in relation to vicarious liability is not straightforward and close attention needs to be paid to the facts and motivations behind the assault. Penningtons Manches’ personal injury team has been successful in establishing vicarious liability in these kinds of cases and has found it particularly useful to preserve CCTV footage, gather evidence from eye witnesses and, in the case of security staff, look into training experience and training relevant to their work.

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Penningtons Manches Cooper LLP is a limited liability partnership registered in England and Wales with registered number OC311575 and is authorised and regulated by the Solicitors Regulation Authority under number 419867.

Penningtons Manches Cooper LLP