Spain says ‘manana’ to time limits for the duration of its lockdown

 

On the 14th March 2020, the Spanish legislature published Royal Decree 463/2020 declaring a state of alarm throughout Spain as a result of the COVID-19 pandemic. One of the exceptional measures under the Fourth Additional Provision was the suspension of the time periods for the application of the statute of limitations and expiration of actions and rights.

This continues until 24 May unless the Spanish Parliament approves a further lockdown extension. At this date, the time limits will be revived for the equivalent time that was left to run prior to the 14th March. Where the time limit was due to expire after 24 May (or any later end to lockdownt) the majority view of legal experts is that it will be extended by the duration of the lockdown.

The Spanish Government is currently seeking to extend the lockdown for a further month.

 

 

No maritime lien against demise chartered vessel for claim for disbursements made to vessel on time charterer’s orders.

 

The Irish Court of Appeal has recently decided in The Almirante Storni [2020] IECA 58 that a claim against the demise charterer by a ship’s agent in respect of  disbursements made to the vessel on the orders of the time charterer does not constitute a “maritime claim” within the meaning of article 1 of the International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-Going Ships done at Brussels on 10 May 1952 (The Arrest Convention). Insofar as the claim involved “disbursements” they were not disbursements made by the master but by the ship’s agents.

Article 1(n) of the Arrest Convention did not entitle an agent to maintain a claim against the owner of the vessel for disbursements made by such agent “on behalf of a ship”, in the absence of any personal liability on the part of the owner. The argument that the time charterer ordered services from the plaintiff as agent of the owners was not tenable. There was no evidence of any actual or ostensible authority to support a finding of agency.

 

Brexit and civil jurisdiction. EU unlikely to consent to UK joining the 2007 Lugano Convention in time for the end of the implementation period.

 

Once the news was all “Brexit, Brexit, Brexit”. Halcyon days. Now it is nothing but the public health emergency. Except, there are still a few pieces of news about Brexit. One of which concerns the arrangements for civil jurisdiction and enforcement of judgments between the UK and the EU Member States after 1 January 2021.

Absent an agreement with the EU on jurisdiction, the UK will revert to its common law rules on jurisdiction on 1 January 2021. This assumes that the UK does not avail itself of the opportunity under the EU Withdrawal Agreement to seek an extension to the implementation period by the end of June, something Mr Johnson has repeatedly stated he will not do, and something which has been specifically ruled out in the statute implementing the Withdrawal Agreement. But there are two other civil jurisdiction regimes to which the UK can become a party, and that is certainly the government’s intention.

The first is the 2005 Hague Convention  on Choice of Court Agreements 2005 (Hague Convention), which came into force as between the Member States and Mexico on 1 October 2015 (for intra EU matters the Recast Regulation prevails).  The Convention deals with exclusive jurisdiction clauses in favour of a Contracting State and for recognising and enforcing judgments within Contracting States in respect of contracts with such clauses. The Convention does not apply to contracts for the carriage of goods ( bills of lading and voyage charters) or passengers, although it would apply to time charters and demise charters. The EU has exclusive competence over anything jurisdictional, and agreements with third party states must be made by the EU acting on behalf of the Member States – hence it was the EU that ratified the 2005 Hague Convention and not the Member States. The UK government previously submitted its accession to this back in December 2018, to come into effect on ‘exit day’, but this has, for the time being, been withdrawn. Doubtless it will re-accede in September to allow for the UK to join the Convention in its own right as of 1 January 2021.

The second is the 2007 Lugano Convention between the EU and three third states, Norway, Iceland and Switzerland. This is basically the original 2001 Brussels Regulation, an inferior regime to the 2012 Recast version, but better than nothing. On 8 April the UK applied to join the Lugano Convention. For this to happen the consent of all the existing contracting parties must be forthcoming. The three third states seem quite happy about this but what about the EU? The signs are that it is not going to consent to the UK’s application.

An article in today’s FT states “EU diplomats said the European Commission had advised the bloc’s member states earlier this month that a quick decision was “not in the EU’s interest”. The diplomats said the commission raised the issue during a meeting with EU member-state officials on April 17, saying that granting the request would be a boon for Britain’s legal sector. A commission official told the meeting there were other international rules that Britain could use as a fallback, and that current signatory countries were all part of the EU’s single market, the diplomats said. With the UK determined to leave the single market after the transition expires, the commission “will surely not make a positive recommendation,” said one national official who took part in the meeting.”

HOW TO CALCULATE THE LIMITATION OF LIABILITY IN CASES OF BAGGAGE LOSS UNDER THE MONTREAL CONVENTION 1999

In the Canadian case of Naeini v Air Canada [2019] O.J. No. 838 the Ontario Superior Court of Justice shed light on how to calculate the limitation of liability in cases of baggage loss under Art 22(2) of the Montreal Convention 1999 (MC). This is an important issue, as Art 22(2)MC provides that the airline’s liability in the case of loss, damage, destruction or delay (LDDD) of a baggage is currently limited to 1,288 SDRs (1,131 SDRs at the time of the loss) per passenger (rather than on a per baggage basis). Furthermore, the MC does not identify who is a passenger for the purposes of Art 22(2), leaving two (not necessarily conflicting) options available: the passenger whose name is in the baggage tag or the passenger who hands over the baggage to the airline and whose personal effects are packed therein.

A family of four was travelling from Bogota to Toronto via Miami with several pieces of baggage and with the baggage tags issued in the name of Mr Naeini, the father of the family. Four pieces of baggage were never delivered to them and all four members of the family brought a claim (one claim per person) for CAD$6,800 (plus tracing expenses and punitive damages for which the Court did not permit recovery). The claimed amount was within the total limit of the four passengers (4 passengers x 1,131SDRs/CAD$2,040=CAD$8,160), but well exceeded the allocation to Mr Naeini on whose name the tags were issued (1 passenger x 1,131SDRs/CAD$2,040).

The Superior Court of Ontario, on appeal, permitted recovery of the full amount, giving a literal interpretation of the term passenger in Art 22(2)MC:  it permits “a claim by each passenger who could demonstrate that his or her bag was handed to the carrier and was checked by the carrier, regardless of whose name was set out on the baggage tag pertaining to such bag”. It further agreed with the Deputy Judge that Air Canada treated the set of baggage as checked in by all four passengers on the basis that it did not charge Mr Naeini extra baggage fees.

Furthermore, the Court distinguished its earlier decision in the case of Holden v. ACE Aviation Holdings (2008), 296 D.L.R. (4th) 233 where Mrs Holden checked one baggage containing items of hers and her husband (who was travelling with her). The baggage was lost and the Holdens unsuccessfully argued that both qualified as passengers under Art 22(2)MC so that each could take advantage of the limit (that was set at 1,000SDRs at the time of the loss). In rejecting their claim, the Court held that the term passenger “denotes an individual who is a passenger and who has checked the piece of baggage that is lost”. This interpretation prevents the carrier from facing unquantified liability, while not compromising the position of the passenger as “he or she is at liberty to check his or her own bag and/or make the special declaration contemplated in the Article”.

The Court in Naeini distinguished the Holden decision on the basis that it applies to a different situation, namely where two or more passengers check in the same baggage. It also held that the ratio of Holden does not address the term “checking” baggage and its relation to the issuance of baggage tags. Responding, also, to the unquantified liability implication, the Court argued that the Naeini interpretation has the opposite result, as it “establishes a fixed maximum liability of a carrier on the basis of the number of passengers on any given flight”.

The decision of the Superior Court of Ontario is not surprising as it follows the judicial trend to opt for the consumer-protective interpretation of the Convention’s provisions in cases of ambiguity. At the same time, it puts into perspective the practice in multi-party bookings to issue tags in the name of one of the passengers which happens for reasons of convenience and to facilitate their tracing. There is nothing in the decision to cast doubt on the legitimacy of this practice under the MC, yet it prevents its use as a way of interpreting Art 22(2)MC.

INJURING YOUR THUMB ON BOARD AN AIRCRAFT: IS IT AN ACCIDENT UNDER THE MONTREAL CONVENTION 1999?

In the recent Australian case of Salih v Emirates (No. 2) [2019] NSWDC 715 the District Court of New South Wales applied the Montreal Convention 1999 (MC) to the thumb injury of a passenger that took place on board an aircraft. The claimant was on a flight from Dubai to Sydney (the flight was part of a return itinerary from Sydney to Istanbul via Dubai). During the flight, she opened the hatch door of the overhead compartment to retrieve infant formula for her baby, but the door fell quickly, and not with the usual slower hydraulic mechanism, near the base of her thumb causing her pain. As a result of the soft tissue injury at her thumb, she claimed that she experienced significant further injuries upon arrival that disrupted her daily professional and personal activities.

The main question for the District Court was whether the injury to the claimant’s thumb (bodily injury) was caused by an accident on board the aircraft under Art 17MC. Relying predominantly on the decision of the Supreme Court of Victoria in Di Falco v Emirates (No 2) [2019] VSC 654, the District Court  held that it was not and dismissed the claim of Mrs Salih.

In Di Falco, the claimant fainted on board an aircraft as a result of dehydration, fracturing her ankle. The Court held (following Olympic Airways v Husain 124 S Ct 1221 (2004)) that the inaction of the crew (failure to assist a distressed passenger) could constitute an accident under Art 17MC, Yet, in the case at hand the crew’s behaviour did not constitute an accident as the passenger’s requests for water “were not refused, merely deferred to later as a result of competing operational demands, a regular occurrence during flights”.

Applying Di Falco, the District Court in Salih held that to suffer an accident a claimant is required to “ identify an event or happening that is external to the passenger which may arise from an act or omission or from a combination of acts or omissions and …the event must be unexpected or unusual. A passenger’s own reaction to the usual, normal and expected operation of the aircraft or any part of it is not an accident”. Therefore, the issue at stake was whether the operation of the door was defective. The Court concluded that the door was operating normally as i) the claimant did not report it as defective at the time of the injury;  ii) her husband gave evidence that the door opened in the normal fashion when he later opened the door; and iii) the maintenance logs of the flight did not disclose any defects.

Since no abnormality in operations was identified, the District Court rightly held that there was no accident and dismissed the claim: “the thumb was injured by the door dropping in the usual, normal and expected way. That is not an accident within the Convention. What it is, is merely the occurrence of an injury itself”.

 

LIAW V UNITED AIRLINES: AN UNSUCCESSFUL ATTEMPT TO APPLY DOE V ETIHAD AIRWAYS IN A MONTREAL CONVENTION 1999 CASE

In the case of Liaw v United Airlines (ND Cal, 2019) the US District Court for the Northern District of California considered the application of the controversial case of Doe v Etihad Airways 870 F3d 406 (6th Cir, 2017) in a passenger claim governed by the Montreal Convention 1999 (MC).

Mr. Liaw was en route from Chicago to London when the aircraft made an emergency landing at Goose Bay due to a crack in the outer layer of the cockpit windshield. Mr Liaw, having sought medical advice ten months after the flight, brought a claim against United Airlines under Art 17MC. He argued that he sustained back injury and emotional distress as a result of an accident, namely the rapid descent of the aircraft during the emergency landing.  It is worth reporting that no injuries were reported at the time of landing and no other passenger brought a claim against United Airlines.

To recover for emotional distress, Mr Liaw relied on the case of Doe v Etihad Airways which held that mental injuries accompanying bodily injuries are recoverable under the MC.  This decision has questioned the prevailing interpretation of Art 17 which permits recovery for mental injuries only when they are directly caused by the bodily injury.

In the case of Doe, the passenger was pricked by a hypodermic needle that that was left by a previous passenger into the backseat pocket drawing blood from her finger. She claimed damages under Art 17MC for the physical injury (the prick in the finger) and for mental injuries caused by the potential exposure to several diseases, including HIV and hepatitis. Etihad, following a long line of case law, defended the claim on the basis that the mental injuries were caused by the nature of the accident (struck by an “orphan” needle), rather than the physical wound in the finger. The Court of Appeals rejected this argument permitting recovery for both the physical injury and the ensuing mental injuries. For the Court the wording of Art. 17 ( “The carrier is liable for damage sustained in case of death or bodily injury of a passenger) supports a conditional test; the  casual test was (wrongly for the Court of Appeals) introduced by case law to protect air carriers under the Warsaw Convention. With the MC emphasizing the protection of passengers, the Court decided to break-free from this long-established case law, permitting recovery “ for her mental anguish, regardless of whether that anguish was caused directly by her bodily injury or more generally by the accident that caused the bodily injury. That is because, either way, Doe’s mental anguish is damage sustained in case of–ie, in the event of a compensable bodily injury”.

Unlike Doe, Mr Liaw’s argument that the mental distress was recoverable as a result of the back injury was not successful.  The District Court dismissed the claim for two reasons. Firstly, there was no evidence that the flight’s decent rate was abnormal. As such, the Court held that the alleged bodily injury was not caused by an accident, namely an unusual and unexpected event that is external to the passenger. Secondly, the Court struck out the testimony of the claimant’s medical expert that the alleged back injury was caused by the decent as “speculative” or, as emphatically put, “Dr. Lewis’s bare-boned conclusion of causation essentially parrots attorney argument”.

Without evidence of a bodily injury caused by an accident, the District Court rightly refused to apply the Doe rationale. As a result, the quest to establish whether the interpretation of Doe is attracting supporters continues.

 

Fixture recap “otherwise as clean Gencon 94 charterparty to be amended/altered as per above main terms agreed”. Are Gencon 94 law and arbitration provisions brought into the charter?

 

In London Arbitration 2/20 a fixture recap set out detailed provisions and concluded “otherwise as clean Gencon 94 charterparty to be amended/altered as per above main terms agreed”. The charterers argued that the law and arbitration provisions in cl. 19(a) of Gencon 94 was not a “main term” agreed in the recap email and was not incorporated into the charter. The tribunal rejected this argument and held that the  concluding words of the recap meant that one should take a clean Gencon 94 form and write into it what “main terms” had been agreed. The parties  had agreed considerable details as set out in the recap email, and then incorporated the terms of the Gencon 94 charter, which were to be adjusted to reflect the detail agreed. The tribunal accordingly had jurisdiction

 

Climate change and tort. The jurisdictional battlefield in the US.

This blog recently featured a New Zealand decision in a strike out application in a climate change tort suit. Similar claims have also been a feature of litigation in the State courts in the US in the last few years. Why not in the federal courts? The reason goes back to two previous decisions: the decision of the Supreme Court in American Electric Power Co. v. Connecticut, 131 S. Ct. 2527 (2011) (AEP),  and that of the Ninth Circuit in Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012), that such actions, at least when they relate to domestic GHG emissions caused by the defendant, are pre-empted by the Clean Air Act.

So, various municipalities have decided to sue in the State courts, claiming damages for what they estimate they will have to spend to mitigate the effects of climate change in future years. The oil majors who have been on the receiving end of these suits have sought removal of the cases to the Federal courts, where they will be dismissed. So far, the position on this is mixed.

The claims by the Cities of New York and Oakland saw their State law claims transferred to the Federal courts because of the interstate nature of the claims. Once there, Oakland sought, unsuccessfully, to distinguish Kivalina and AEP on the grounds that those decisions involved emissions directly from activities of the defendants, rather than by virtue of their sales of fossil fuels to third parties who then burn it and cause GHG emissions. This was not enough to distinguish the cases, and a further attempt, based on the effect of worldwide sales outside the reach of the Environmental Protection Agency and the Clean Air Act, also failed, running into the presumption against extraterritoriality. A further reason for dismissing the claims was that they implicated the interests of foreign and domestic governments and that the balancing of interests involved in the analysis of unreasonable interference in a public nuisance suit was best left to governments. New York has appealed the decision, as has Oakland.

By contrast, Baltimore’s tort claims in the State Court of Maryland have managed to stay there. The claims were not based on federal common law and the Clean Air Act did not show congressional intent for it to provide the exclusive cause of action, and indeed the Act contains a savings clause specifically preserving other causes of action. The Defendants then unsuccessfully applied to the Supreme Court for a stay, pending the hearing of their appeal.

On 6 March 2020 the Fourth Circuit declined to transfer the claims to the Federal Courts. They decided that the appeal was limited under 28 U.S.C. § 1447(d) to an appeal based on the Federal Officer Removal statute, one of the eight grounds for transfer argued by the Defendants in the District Court. The Statute,  U.S.C. § 1442, authorizes the removal of cases commenced in state court against “any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office…”  The Defendants argued that the statute applied because the City “bases liability on activities undertaken at the direction of the federal government”, pointing to three contractual relationships between certain Defendants and the federal government: (1) fuel supply agreements between one Defendant (Citgo) and the Navy Exchange Service Command (“NEXCOM”) from 1988 to 2012; (2) oil and gas leases administered by the Secretary of the Interior under the OCSLA; and (3) a 1944 unit agreement between the predecessor of another Defendant (Chevron) and the U.S. Navy for the joint operation of a strategic petroleum reserve in California known as the Elk Hills Reserve.

The Fourth Circuit held that none of these relationships could justify removal, either because they failed to satisfy the acting-under prong or because they were insufficiently related to Baltimore’s claims for purposes of the nexus prong.

On 31 March 2020 the Defendants submitted a petition for certiorari to the US Supreme Court. on the question whether 28 U.S.C. § 1447(d) permits a court of appeals to review any issue encompassed in a district court’s order remanding a removed case to state court where the removing defendant premised removal in part on the federal-officer removal statute, 28 U.S.C. § 1442, or the civil-rights removal statute, 28 U.S.C. § 1443.

In another suit, by San Mateo, the Defendants have appealed against the District Court’s decision not to transfer the suit from the California State Court. The appeal was consolidated with Oakland’s appeal. On 5 February 2020 the Ninth Circuit heard oral argument. They were later informed of subsequent developments in the Baltimore case.

A further success for the municipalities was in the Rhode Island suit, now subject to an appeal to the First Circuit.

It is, therefore, possible that at least one of these tort suits will see the light of trial in the next year or so. When that happens, expect some interesting arguments on causation and damages.

What is an ‘international case’ in Denmark? Indemnity claim for cargo damage heard in Denmark despite exclusive jurisdiction in favour of High Court in London.

 

An interesting decision from Denmark, noted recently by WSCO Advokatpartnerselskab https://www.lexology.com/library/detail.aspx?g=6d6b72da-f890-4cf3-9075-21752902d70e

 

Pursuant to a contract to carry containers from China to Denmark, the Danish importer booked carriage with Danish freight forwarder who sub contracted to a Danish shipping company under an agreement made in Shanghai by the parties’ respective Chinese subsidiaries. The shipping company issued a waybill naming the forwarder as consignee. This contained an exclusive jurisdiction clause in favour of the High Court in London. The importer sued the forwarder and its insurers in the Danish High Court for loss of three containers in rough weather during the voyage, and the forwarder then sought an indemnity under the waybill from the shipping company. The Danish shipping line sought to a have the indemnity dismissed by reference to the exclusive jurisdiction clause.

One would have thought the shipping line’s application for dismissal would be a dead cert under Article 25 1 of the 2012 Brussels Regulation (Recast) which provides.

If the parties, regardless of their domicile, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction, unless the agreement is null and void as to its substantive validity under the law of that Member State. Such jurisdiction shall be exclusive unless the parties have agreed otherwise.

The agreement conferring jurisdiction shall be either: (a) in writing or evidenced in writing; (b) in a form which accords with practices which the parties have established between themselves; or (c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.

The Danish Court held that the jurisdiction agreement would prevail over the mandatory rules in the Danish Merchant Shipping Act if the contract of carriage were international in nature. But this was not the case here, given that both the shipping company and the freight forwarder are Danish companies with their head offices in Denmark and that the place of delivery of the goods is in Copenhagen where the importer was domiciled. So the case proceeds in the Danish High Court

 

Two new cases on vicarious liability from the UK Supreme Court on Wednesday, 1 April.

 

Two Supreme Court decisions this week which seem to mark a retreat in the process of expanding the scope of vicarious liability seen since 2012 in the “Christian Brothers” case.

  1. Barclays Bank plc (Appellant) v Various Claimants (Respondents)

[2020] UKSC 13

 

Claims were made against Barclays in respect of claims of sexual assault  by Dr Bates during unchaperoned medical examinations in a consulting room in his home. Barclays required job applicants to pass a pre-employment medical examination as part of its recruitment and employment procedures. Dr Bates was a self-employed medical practitioner whose work included conducting medical assessments and examinations of prospective Barclays employees.

The Supreme Court has reversed the finding of the first instance judge, upheld by the Court of Appeal, that Barclays was vicariously liable for Dr Bates’ alleged assaults.

There are two requirements for a finding of vicarious liability. First, there must be a relationship between the two persons which makes it proper for the law to make one pay for the fault of the other. Second, there must be a sufficient connection between that relationship and the wrongdoing of the person who committed the tort. The case concerned the first element. A person can be held vicariously liable for the acts of someone who is not their employee, provided the relationship between them is sufficiently akin or analogous to employment. However, the classic distinction between employment (and relationships that are akin or analogous to employment) on the one hand, and the relationship with an independent contractor on the other hand, remains.

In in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 (the “Christian Brothers “case) Lord Phillips referred to five factors that may help to identify a relationship which is sufficiently analogous to employment to make it fair, just and reasonable to impose vicarious liability. However, where it is clear that the person who committed the tort is carrying on his own independent business, it is not necessary to consider the five incidents

The key question is whether the person who committed the tort is carrying on business on his own account, or whether he is in a relationship akin to employment with the defendant. This was not the case here. Dr Bates was not at any time an employee or anything close to an employee of Barclays, but was in business on his own account as a medical practitioner, with a portfolio of patients and clients. He did work for Barclays, which made the arrangements for the medical examinations and chose the questions to which it wanted answers, but much the same would be true of window cleaners or auditors. Dr Bates was not paid a retainer, which might have obliged him to accept a certain number of referrals from Barclays. He was paid a fee for each report and was free to refuse to conduct an offered examination. He would have carried his own medical liability insurance

 

  1. WM Morrison Supermarkets plc (Appellant) v Various Claimants (Respondents) [2020] UKSC 12

 

This case involved the second limb of the vicarious liability test, the need for a sufficient connection between that relationship and the wrongdoing of the person who committed the tort. The claim involved a disgruntled employee, one Skelton, had received a verbal warning after disciplinary proceedings for minor misconduct and bore a grievance against his employer thereafter. In November 2013, he undertook the task of transmitting payroll data for the Supermarket’s entire workforce to its external auditors, as he had done the previous year. In doing this he made and kept a personal copy of the data which he then uploaded in a file to a publicly accessible filesharing website, as well as distributing the file anonymously to three UK newspapers, purporting to be a concerned member of the public who had found it online. Some of the affected employees then sued the Supermarket for breach of statutory duty under the Data Protection Act 1998, misuse of private information, and breach of confidence, both personally and on the basis of vicarious liability for its employee’s acts.

At first instance, and in the Court of Appeal, it was held that the Supermarket was vicariously liable as Skelton had acted in the course of his employment. The Supreme Court overturned the decision.

What had to be established was first, what functions or “field of activities” the employer had entrusted to the employee, and then whether there was sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable.

In this case, the online disclosure of the data was not part of Skelton’s “field of activities”, as it was not an act which he was authorised to do. The satisfaction of the factors referred to by Lord Phillips in the Christian Brothers case was only relevant to the first question, the relationship between wrongdoer and defendant was sufficiently akin to employment for vicarious liability to subsist, and not with whether  the employee’s wrongdoing was so closely connected with their employment that vicarious liability ought to be imposed. What was highly material was whether Skelton was acting on his employer’s business or for purely personal reasons.

Skelton’s case bears many similarities with Mohamud [2016] AC 677, where a customer at a petrol station had an angry confrontation with the petrol station attendant, who wrongly suspected him of trying to make off without payment. The customer was enraged at how the attendant had spoken to him and after paying he flagged down a passing police car and complained about the attendant’s conduct. The customer and the police returned to the petrol station where the officer listened to both men and indicated that he did not think that it was a police matter. The customer said that he would report the attendant to his employer and as the officer was on the point of leaving, the attendant punched the customer in the face. The Supreme Court found that the petrol station was vicariously liable for the assault by its attendant.

In the instant case, Lord commented on the fact that the function of the attendant in Mohamud was to deal with his employer’s customers and the assault was the culmination of a sequence of events which began when the attendant was acting for the benefit of his employer. In contrast, Skelton was not engaged in furthering his employer’s business when he committed the wrongdoing in question, but, rather, was pursuing a personal vendetta against them. Although authorised to transmit the payroll data to the auditors, his wrongful disclosure of the data was not so closely connected with that task that it could fairly and properly be regarded as made by Skelton while acting in the ordinary course of his employment. The fact that his employment gave him the opportunity to commit the wrongful act was not sufficient to warrant the imposition of vicarious liability. An employer would not normally be vicariously liable where the employee was not engaged in furthering his employer’s business, but rather was pursuing a personal vendetta.