A Christmas Works party gone wrong – vicarious liability or not?

profile_PI_Vilma_Vodanovic1

By Vilma Vodanovic

A review of the High Court decision in the case of Bellman v Northampton Recruitment Limited [2016] EWHC 3104 (QB) and a useful summary of the principles governing vicarious liability.

Facts:

Mr Bellman was employed by D whose director and major shareholder was an old friend of his, Mr John Major. A Christmas Works party took place at a golf club on 17.12.2011. A number of employees attended with their partners and there were in total some 24 people at the party. It was all to be paid for by D and drinks were flowing all night. When the party ended at the golf club, about half of the people went on to a hotel where some of the party guests were staying. There was more drinking at the hotel. There was initially general chit chat between the group on various topics. At about 2.45am, the chat turned to work related issues and Mr Major, having felt his authority was being challenged on a particular issue, lost his temper somewhat and punched Mr Bellman twice. The first time he was punched Mr Bellman fell to the ground and started bleeding; Mr Bellman then got back up and pleaded with Mr Major to stop, but he did not and he punched Mr Bellman yet again resulting in his falling backwards and hitting his head on the marble floor. Mr Bellman sustained brain damage as a result of that head injury with reduced cognitive function such that he lacked capacity and was a protected party for the purposes of these proceedings.

Mr Major was initially sued but given that he was unlikely to satisfy any judgment, the company for which Mr Bellman worked was sued instead under the principle of vicarious liability.

Decision:

This claim was unsuccessful as vicarious liability could not be established in these circumstances. Before giving reasons for that decision HHJ Cotter QC reviewed the authorities on vicarious liability and he came up with a summary of the governing principles:

i) An employer is not liable for an assault by his employee merely because it occurred during working hours (see e.g. Wilson-v Excel [2010] CSIH 35 and Grahamv- Commercial Bodyworks [2015] ICR 665) and not axiomatically free from liability because it occurred outside normal working hours and/or the workplace (see e.g. Bernard v AG of Jamaica [2003] Privy Council and Mattis –v-Pollock [2003] 1WLR 2158).

 ii) As set out in Mohamud v WM Morrison Supermarkets Plc [2016] AC 672 there are two questions to be considered:

 a) Firstly looking at matters in the round or broadly, what were the functions or what was the field of activities entrusted by the employer to the relevant employee i.e. what was the nature of his job? This should not entail a dissection of the employment into its component activities, rather a holistic approach and answering the question as a jury would;

b) Secondly, was there a 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 under the principle of social justice? Again a broad approach should be taken and it is necessary to consider not only the purpose and nature of the act but also the context and circumstances in which it occurred.

 iii)  The test is inevitably imprecise given the nature of the issues. The authorities have not sought to give detailed guidance as to the nature of the connection as the assessment is peculiarly fact sensitive. So whilst consideration of past cases shows that certain specific factors have been considered central, if not determinative, given particular circumstances e.g. the material increase in risk in putting a teacher in close proximity with a vulnerable pupil, it remains very much a fact specific evaluation having regard to the full circumstances of the employment and the tort.

 iv) Whilst consideration of the time and place at which the relevant act occurred will always be relevant, it may not be conclusive. There must be some greater connection than the mere opportunity to commit the act provided by being in a certain place at a certain time.

 v) The policy underlying this form of strict liability should always be borne firmly and closely in mind.

Analysing the facts of this case in the light of the above mentioned principles, HHJ Cotter QC gave the following reasons.

Firstly, much of what Mr Major did during the average working day was directly or indirectly connected to the Defendant and could be considered within his role as the managing director of this relatively small company. There is no doubt also that he viewed part of his job to be the motivation of employees. Part of motivation is reward and, apart from salary, many employees receive incidental benefits, such as a Christmas party at the company’s expense. Mr Major would have seen it as part of his job to oversee the smooth running of the Christmas party. He was not just an attendee.

Secondly, the assault was committed after the party ended and was not during an organised social event. The drinks at the hotel were not pre-planned but were impromptu drinks arranged on the night after the party ended. At the hotel, the discussion was generally not related to work. Much later it turned to a discussion about work and Mr Major started ‘ranting’ about a particular topic and got quite heated. Whilst it was argued by Mr Bellman’s Counsel that this discussion about work at the hotel meant that the incident was closely related to work and the drinks were an extension of the party, the Judge was of the view that too much emphasis had been placed on the discussions between the parties.

If the mere fact of a discussion being between employees and about work were enough for liability to arise, it would mean that such a company’s potential liability would become so wide as to be potentially uninsurable.

Ultimately, there was insufficient connection between the position in which Mr Major was employed and the assault to make it right for D to be held liable under the principle of social justice. To find its application here would be to foist D, in reality its insurer, with an undue burden and would effectively make it as “an involuntary insurer”.

Comment

It would seem that had the assault taken place during the organised Christmas Party at the golf club, vicarious liability is likely to have been established. It is the fact that the assault took place at the hotel that meant there could not be sufficient connection between the employment and the assault. It was argued that this was merely an extension of the Christmas Party but in the all circumstances the Court did not agree with that interpretation.

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