Bouncing liability

The licensed trade has sought to distance itself from the image of the aggressive nightclub 'bouncer' meting out violence while policing late night licensed premises. The government too has sought to regulate those working in the security industry by setting up the Security Industry Authority (SIA), a body created under the Private Security Industry Act 2001 to 'manage the licensing of the private security industry... [and] to raise standards of professionalism and skills within the private security industry and to promote and spread best practice'. As a result, 'door supervisors' must now be trained and licensed.

But these measures cannot eliminate the possibility of a door supervisor assaulting a member of the public. The nature of the environment in which they work, often dealing with inebriated customers filled with drink-fuelled bravado, unfortunately lends itself to the risk of members of the public being injured.

The coming into force of the Licensing Act 2003 on 24 November 2005 provided for the liberalisation of alcohol availability and extended opening hours for licensed premises. Longer hours, higher alcohol consumption and an increase in the number of door supervisors necessary to police the new late-night economy bring with them the threat of a rise in the incidence of injury to the public; some of which will be inflicted by door supervisors.

The 2003 Act balances the new freedom for alcohol outlets with increased responsibilities. Door supervisors are regularly required as a condition to be endorsed on the licences of late-night premises. Where such a condition is imposed, it is mandatory for the condition to require that the individuals employed are licensed with the SIA (s 21).

What, in particular, should the personal injury practitioner be looking for when considering an action for injuries resulting from the actions of a door supervisor?

Liability and causation

To succeed on liability and causation, it is of course essential to determine that the claimant has been assaulted and is not simply the loser of a fight. Identifying the door supervisor, obtaining witness statements, hospital records and CCTV footage may assist in corroborating the claimant's version of events. Ask the police what action they may be taking. Early investigations should include checks to see if the door supervisor is SIA-registered.

While investigating any civil claim, an application to the Criminal Injuries Compensation Authority should also be considered, with the two-year deadline being noted. A successful applicant will, however, need
to repay any award if they also recover damages in a civil claim.

The defendant

Having commenced liability and causation investigations, and assuming a prima facie case for liability can be established, it is then necessary to determine the appropriate defendant. While the door supervisor may
of course be pursued directly, it is those who run the premises and/or employ the door supervisor who will have the means, usually through insurance cover, to satisfy any judgment that may be obtained.

Establishing the correct defendant(s) is not always obvious and will form part of the initial investigations. If the premises where the assault took place employed the door supervisor, liability may be more straight-forward, following two leading decisions on vicarious liability.

Door supervisors employed by the premises

The House of Lords analysed the relevant principles on vicarious liability in Lister v Hesley Hall [2001] UKHL 22 and Dubai Aluminium v Salaam [2002] UKHL 48. Lister concerned the sexual abuse of children who were resident at a school for boys, who had emotional and behavioural difficulties and claimed that a warden had abused them. The claims, brought many years after the claimed abuse, alleged that the school was negligent in its selection, appointment and supervision of the accused member of staff.

In determining the question of vicarious liability where a tort has not been directly authorised by an employer, the Lords asked the following question: 'Was the employee's tort so closely connected with this employment that it would be fair and just to hold his employer liable?' The Lords held that the proper approach was to adopt a broad assessment of the nature of the employee's employment. Here, the school had undertaken to care for the boys through the services of the warden. On the particular facts, the Lords determined that the acts were 'so closely connected' with the warden's employment that it would be fair and just to hold the school liable.

The later case of Dubai Aluminium concerned the liability of a firm for the dishonesty of one of its partners. The House again stressed the importance of considering the closeness of the connection between the partner's duties and his wrongful act. It did not matter that the partner concerned was acting dishonestly for his own gain and, as in Lister, the lack of fault on the employer's part was irrelevant.

Mattis v Pollock [2003] 1 WLR 2158 concerned the question of vicarious liability following an assault by a door supervisor. Mattis was paralysed after being stabbed by a door supervisor (Cranston). On the night in question, Cranston had sought to eject a friend of the claimant's and to attack several others. He then left the club having been pursued by several customers of the club. Intent on revenge for the injuries inflicted on him, he went home, returned with a knife and stabbed the claimant who was standing in the street.

The claim against the nightclub owner (Pollock) as Cranston's employer was unsuccessful in the High Court. The Court of Appeal, however, allowed the claimant's appeal, applying the principles laid down in Lister and Dubai Aluminium. Lord Justice Judge posed the question: 'Approaching the matter broadly, was the assault 'so closely connected' with that Mr Pollock authorised or expected of Cranston in the performance of his employment that it would be fair and just to conclude that Mr Pollock is vicariously liable for the damage Mr Mattis sustained when Cranston stabbed him?' He went on to say: 'Even allowing that Cranston's behaviour included an important element of personal revenge, approaching the matter broadly, at the moment when Mr Mattis was stabbed, the responsibility of Mr Pollock for the actions of his aggressive doorman was not extinguished. Vicarious liability was therefore established.' In reaching this decision, Pollock's knowledge of the aggressive propensity of the door supervisor was an important factor.

Door supervisor provided by another party

How is a claim best approached if the premises where the assault took place do not employ the door supervisor? From a claimant's point of view, the preferred defendant will be one with insurance cover in place. Unfortunately, businesses providing door supervisors can be transient organisations, often operating without insurance. Suing the premises for failing to ensure that they contracted with a company with insurance is unlikely to succeed following the ruling in T Naylor (T/A Mainstreet) v Payling [2004] EWCA Civ 560. Here, the claimant sustained serious injuries while being ejected from a club by a door supervisor. The appellant (Mr Naylor) owned and ran a club and engaged a Mr Whitehead to provide door supervisors for his club. Whitehead did not have any public liability insurance to cover the activities of his employees.

The claimant pursued his claim against Naylor as club owner and in the County Court was successful on the basis that Naylor owed a duty to ensure that Whitehead was insured.

Naylor appealed to the Court of Appeal, which held that the first issue was to consider the nature of the duty owed by the appellant to the claimant. That duty was to take reasonable steps to ensure the safety of the visitors to the club. However, it was also held that the appellant owed no duty to visitors to ensure that an independent contractor had insurance or even sufficient assets to meet any liability that might arise. The appeal was successful and the claimant's claim dismissed. (See also KR v Royal & SunAlliance [2005] EWCA Civ 1454, where an appeal made by the insurer against a decision that it was liable under the Third Parties (Rights Against Insurers) Act 1930 was allowed in part.)

However, premises where the assault occurred may still be liable even if they did not employ the door supervisor. In Hawley v (1) Luminar Leisure (2) ASE Security Services Ltd (3) David Preston Mann (as nominated underwriter for Faraday Underwriting Ltd) [2006] EWCA Civ 18, the Court of Appeal considered, among other matters, the identity of the employer where door supervisors had been supplied by a separate organisation.

Mr Hawley suffered brain damage after an assault by a door supervisor outside the premises. Proceedings were commenced against Luminar and ASE on the basis that each was responsible for the door supervisor's deliberate and tortuous act. The claimant pleaded that Luminar was the door supervisor's 'deemed temporary employer,' the phrase used in the leading authority of Mersey Docks and Harbour Board v Coggins & Griffiths (Liverpool) Ltd [1947] AC 1, which set out the test to determine an individual's effective employer. Both parties were alleged to be negligent in failing to train and supervise the doorman properly; failing to check he was properly registered with the local authority; and failing to establish that he was suitable to be a door supervisor.

ASE had gone into liquidation and judgment in default was obtained against them. However, their insurers refused to indemnify them; hence the claimant involving the third defendant in the proceedings. The first and third defendants appealed the earlier High Court decision in which Luminar was held vicariously liable as having sufficient control over the door staff to make them temporary deemed employees.

The Court of Appeal dismissed the appeals, upholding the High Court's finding that the club was the deemed employer of the door supervisor and that vicarious liability required no fault on the part of the employer. As Lady Justice Hallett put it: 'For a company like Luminar who have done their best to maintain high standards, this may appear to be a harsh result. However, vicarious liability requires no fault on the part of the employer or, in this case, the deemed employer.'

The court looked at the contract between Luminar and ASE. This, they determined, was only for the provision of labour and, by using their services, the club did not gain access to a team of trained specialists on whose skill and expertise it depended. There was no need for the club to rely on ASE's staff; it merely chose to do so. Importantly, the club exercised detailed control over the door supervisor's job and how it was done. The contract gave effective control of the doormen to the club. In those circumstances, the court found that it would not be appropriate to attribute vicarious liability to both the club and ASE, although the concept of dual liability was accepted: see Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005] EWCA Civ 1151. Following Dubai Aluminium, the court held that the lack of fault of a person vicariously liable for the wrongful act of an employee was not relevant for the purpose of determining contribution proceedings between that person and another wrongdoer. It was therefore open to the High Court to assess ASE's contribution at nil. It was also held that the nature of the injury being accidental was correct. The appeal was therefore dismissed.

Treading carefully

Lister and Dubai Aluminium have provided a broader test for vicarious liability, which is of assistance to claimants where assaults are inflicted by employees of the premises. However, caution must be taken over the interpretation of Mattis. It has not established strict liability against employers. The finding of vicarious liability was made specifically on the facts of the case and, importantly, in reaching its decision, the court was mindful that the employer was fully aware of the doorman's willingness to use violence, seemingly condoned by the employer.

Where the door supervisor is not an employee, a decision needs to be made against whom the claim should be made. It is unlikely that the assailant door supervisor will be pursued, but both the premises and the organisation providing the door supervisor(s) will need to be considered. If the premises are to be named as a defendant, the 'control' test as set out in Mersey Docks, which requires questions such as who pays the employee, who has power to dismiss him and who controls him, among others, to be asked. The test is still crucial in determining liability and, if appropriate, any apportionment of liability between potential defendants.

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