Vicarious liability: is the party over for claimants?
Bellman v Northampton Recruitment Limited [01.12.16]
High Court finds employer is not vicariously liable for an assault during impromptu drinks after office Christmas party.
In December 2011, following the defendant’s staff Christmas party, some employees left the party venue and continued drinking in the lobby of a nearby hotel. Mr John Major (Mr Major), a director of the defendant, also went to the hotel. There were also others present who were not employees, but were drinking with the group. The conversation at the hotel had been of a social nature for up to one and a half hours before returning to the topic of work. The claimant, who had been friends with Mr Major since childhood, challenged a statement made by Mr Major regarding the deployment of a member of staff. Mr Major then assaulted the claimant, punching him twice and knocking him to the floor leaving him brain-damaged.
The claimant brought a claim for damages against the defendant on the basis it was vicariously liable for the actions of Mr Major.
One of the main cases considered by Judge Cotter QC was the recent decision of Mohamud v WM Morrison Supermarkets PLC . The questions which arose in Mohamud were:
- What was the field of activities entrusted by the employer to the relevant employee (Mr Major)?
Was there sufficient connection between the position in which he, Mr Major, was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice?
Notwithstanding that the Court decided that Mr Major was both the managing director and the directing mind of the defendant, it held that the defendant was not vicariously liable for his actions:
- The assault was held to have occurred after and not during an organised work social event and was therefore not a seamless extension of the Christmas party.
- The conversation had for a significant period been about social or sporting topics.
- Although the topic of conversation returned to work matters immediately before the assault, this was not a sufficient connection to support a finding of vicarious liability against the defendant.
With the office Christmas party season now in full swing this decision will be of particular interest to employers. The Court was of the opinion that the mere fact that employees might be out celebrating together and discussing work does not automatically make the employer vicariously liable for their actions: there has to be something more. Under the doctrine of vicarious liability, the principles of social justice prevent automatic liability from occurring as a company’s potential liability would be so wide as to be uninsurable.
The Court confirmed that this ‘connection’ is very much fact-specific having regard to the circumstances of the employment as well as the tort committed.
Importantly, the Judge suggested, however, that had the assault taken place at the Christmas party (rather than at impromptu drinks afterwards) the decision could have been different. In that case the party itself might have been more closely connected or incidental to the employment of the claimant and Mr Major than other ancillary activities.
- The act must relate to the role of employment itself in some way for the employer to be held vicariously liable. This is fact specific.
- An employer is not liable for an assault because it occurred during work hours. Conversely neither is the employer free from liability simply because it occurred outside normal working hours. It must relate to the employment.
Related item: Vicarious liability: a difficult day for defendants