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Courts demonstrate a reluctance to extend the concept of vicarious liability in two important decisions in the High Court and Court of Appeal

Following on from the Supreme Court’s decision earlier this year in Mohamud v WM Morrison Supermarkets Plc (see DWF update) the High Court and the Court of Appeal have introduced some balance to the concept of vicarious liability. They have recognised the need to avoid fixing defendants and their insurers with an “undue burden” in refusing to extend the application of the principle to situations which on the face of it appear removed from the employee/employer relationship. Liz Harrison analyses the recent decisions in Fletcher v Chancery Lane Supplies Ltd (2016) and Bellman v Northampton Recruitment Ltd (2016).

Fletcher v Chancery Lane Supplies Ltd (2016)

Fletcher v Chancery Lane Supplies Ltd
Court of Appeal
20 October 2016

In Fletcher Mr Traynor, an employee was crossing a road between two sites operated by his employer, the defendant. One was a shop where he was primarily based. As he did so he collided with the claimant, a police officer riding a motorised bicycle.

Mr Traynor was not called to give evidence and there was no other evidence as to why he was crossing the road. The accident occurred at 12.45 pm and his working shift would ordinarily have ended at 12 noon.

First Instance Decision

At first instance the judge found for the claimant, concluding that Mr Traynor was at work at the time of the accident and was acting in the course of this employment because he had told the police was that he was crossing the road to the shop and had given the address of the shop as his contact address (despite only living 10 minutes away). He was also wearing work boots and a work shirt.

Appeal Decision

In a very brief judgment the Court of Appeal overturned that decision. They considered the judge had not had sufficient evidence to find that Mr Traynor was still at work. Furthermore, even if he was still at work there was no evidence to decide whether there was a “sufficient connection” between Mr Traynor’s job as a shop assistant and his actions so as to make his employer vicariously liable in accordance with the principle of social justice (that employers should be responsible for their employees’ wrongful actions) which goes all the way back to the 1697 decision of Holt CJ in Turberville v Stamp.

Bellman v Northampton Recruitment Ltd (2016)

Bellman (a protected party) v Northampton Recruitment Ltd
High Court (QBD)
1 December 2016

In Bellman the claimant was attending a work Christmas party at a golf club. The party had been organised and paid for by the defendant employer under the direction of the defendant`s Managing Director, Mr Major. After the golf club event a group of employees including the claimant and Mr Major proceeded on to a hotel (where some of the employees were staying overnight). At approximately 3am, whilst some of the group continued to drink, Mr Major assaulted and punched the claimant who sustained a serious brain injury. The attack allegedly followed an expletive filled “rant” by Mr Major about his management of the company and was said to be provoked by frustrations expressed by the claimant to Mr Major about a new member of staff.

The evidence indicated that not only had the defendant paid for the party at the golf club, it also paid for taxis home or alternatively for taxis to the nearby hotel for those employees staying there. In addition it was understood that the defendant company would also foot the bill for the drinking (or reimburse expenses incurred) which continued at the hotel.

Submissions

At the heart of the claimant’s submissions was the argument that the assault was in the course of, and closely connected to, employment and therefore the defendant was vicariously liable for the actions of Mr Major He placed a good deal of reliance on Mr Major’s alleged rant preceding the assault which was said to be related to work issues.

Decision

In a useful and detailed analysis of the preceding case law HHJ Cotter QC (sitting as a High Court Judge) found against the claimant.

Referring to relevant case law the judge noted that the test of vicarious liability was imprecise and that the issue was always going to be fact specific. He identified the relevant principals as follows:

  • An employer is not always liable for an assault because it occurs during working hours but is not always free from liability because it occurs outside normal working hours and/or the workplace

  • The key questions – which were to be applied broadly - were as set out by Lord Toulson in Mohamud:

  • What was the nature of the employee’s job?

  • Was there a sufficient connection between the position in which he was employed and his wrongful conduct so as to make it right that his employer should be held liable under the principal of social justice? This should be more than a mere opportunity to commit the act by virtue of being in a certain place at a certain time.

The court accepted that whilst, as Managing Director, Mr Major was “not just an attendee” at the Christmas Party. However, it found that it could not be right that he could be considered to be “on, or potentially on duty, solely because he was in the company of other employees regardless of circumstances”.

Crucially the judge drew a distinction between events which occurred at the Christmas party proper – at the golf club – and subsequent events at the hotel. The judge noted that there may have been a degree of criticism had employees not attended the party, such as to have made it closely connected to or incidental to employment – but no such expectation that they would continue on to the hotel for an “impromptu drink”.

The fact that taxis back to the hotel were paid for by the Company had no bearing upon the issue, as the expectation was that they would have been funded in any event, as would the alcohol which had been consumed at the party.

The judge considered the “entirely independent, voluntary and discreet early hours drinking session” to be of a very different nature to the Christmas party and unconnected with the defendant’s business. To coin a phrase, the participants were on a “frolic of their own”.

Comment

Following on from the Supreme Court’s decision in Mohamud these decisions can be seen to be a rebalancing restriction on attempts to further extend the application of the principle of vicarious liability.

The decision in Bellman may appear a little surprising, particularly given the decision in Mohamud, however the distinction was drawn between the two cases on the basis of the assault on Mohamud as being part of a “seamless episode” which commenced with the employee’s response to a request that was within the field of activities” whilst the “after party” at the hotel was viewed by the judge as an entirely separate event to the organised party.

HHJ Cotter was clearly mindful of the need to restrict the principle of social justice so as to avoid placing an “undue burden” upon defendants and their insurers who would otherwise end up footing the bill for the actions of wayward employees.

The approach taken by the Court of Appeal in Fletcher may seem also surprising when set against the decision in Mohamud. Had the court found that the Mr Traynor was still at work it is difficult to understand how he could have been crossing the road between the office and the shop where he worked for any reason other than in connection with his employment. Similarly, in Bellman, had the assault occurred at the organised party there seems little doubt that the court’s decision would have been different.

The Supreme Court in Mohamud specifically declined an invitation to broaden the traditional test for vicarious liability towards an extended concept of corporate responsibility and the courts in Fletcher and Bellman appear to have been mindful of the need to avoid widening the net too far. Despite this it seems likely that efforts to stretch the boundaries will continue and the range of circumstances that insurers may have to consider remains broad. 

Contact

For further information please contact Liz Harrison, Associate on 0151 907 3419 or at liz.harrison@dwf.law

By Liz Harrison

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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