Mattis v Flamingo’s Nightclub [2003] EWCA Civ 887

Employer – vicarious liability – check – negligence

The business owner of a nightclub was held vicariously liable for the criminal actions of an unlicensed doorman whom he should not have been employing. The case may have implications for any social care provider who for whatever reason employs someone who has not been Criminal Records Bureau checked, who then causes harm of a nature related to their record to a client of the provider.

The victim was rendered paraplegic by severe stab wounds inflicted by the bouncer who had left and come back to the club having armed himself for a fight, after an earlier altercation in which the victim had been involved. The attack occurred outside the club, and the club owner’s defence was that it should not be held liable for the wholly unexpected behaviour of the doorman.

The court found that the club owner had actually encouraged the doorman to do his regular work in an aggressive and intimidatory manner, which makes the decision more explicable. It justified the court’s finding a link between the concept of the course of this doorman’s employment and what had actually happened on the night in question.

In general, the fact that someone has an unknown tendency to violence and then fails to control themselves, will not be laid at the feet of the employer, because the ordinary course of employment in social care should never encompass or encourage violence or aggression. However, inadequate checking, or decisions to employ someone with a relevant record despite convictions may form the foundations of a case in negligence against social care providers.

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