The claimant in this case was injured during the course of a scuffle at a nightclub owned by Luminar Leisure plc. A door steward, Mr Warren, punched Mr Hawley causing him to fall and strike his head against the pavement. As a result he sustained fractures of the skull, nose and jaw as well as severe injury to the brain.
Mr Hawley brought a claim against the nightclub, Luminar Leisure plc, and also against ASE Security Services Ltd, who employed Mr Warren. Luminar, however, had a contract with ASE which indemnified them against any claims arising out of the actions of ASE employees. They denied liability stating that Mr Warren had at all times remained an employee of ASE. ASE, however, had been voluntarily wound up. Furthermore, ASE’s insurance company only covered claims which related to ‘accidental bodily injury’ and therefore did not bear any liability it this instance as Mr Warren’s actions had been deliberate.
The question arose as to whether Luminar could be held to be vicariously liable for the actions of a non-employee, namely Mr Warren. The Court considered the rulings set down in Mersey Docks Harbour Board –v- Coggin and Griffith (Liverpool) (1947) and Denham –v- Midland Employers Mutual Insurance Ltd (1955). Both cases examined the degree of control which a firm had over a non-employee in order to decide whether it could be held liable for their actions. In Denham, Lord Denning asserted that if a temporary employer has the right to control the manner in which the non-employee does his work, so as to tell him the right way or the wrong way to do it, then he should be responsible if the non-employee does it the wrong way. If a temporary employer had the right to control a non-employee then they must also have the burden of responsibility for their actions whilst in temporary employ. In this instance Mr Justice Wilkie stated: ‘The control that Luminar had over ASE’s employees was such as to make them temporary deemed employees of Luminar for the purposes of vicarious liability.