Vicarious liability temporarily halted

Shelbourne v Cancer Research UK [2019] EWHC 842(QB)

The facts

On 7 December 2012, a Christmas party was held at the Cambridge Research Institute of Cancer Research UK (CRUK). This was the third Christmas party that had taken place and was organised by volunteers who worked for CRUK. The party consisted of a buffet, games, music, singing and a disco. The event was for ticket holders only and was open to the defendant’s staff and their guests.

At the time of the accident, the claimant was on the dance floor when a visiting scientist, Mr Belik, came over to her and physically lifted her up. After he had lifted her, he lost his balance causing her to fall and sustain a serious back injury.

The claimant was an employee and worked for the defendant as an animal technician. However, Mr Belik was a scientist who worked for the Cambridge University but his involvement with the institute as a scientific researcher entitled him to a security pass to attend the party. It was not disputed that Mr Belik had been drinking from an early stage and that he had lifted three other women at the party who had not reported his conduct to the defendant. The volunteers organising the party had assessed the risk of partygoers returning to laboratories after the consumption of alcohol. As a result, guests of the party were required to sign a disclaimer confirming that they would not attempt to work in the laboratories after consuming alcohol. During the course of the party, two security officers were present with the main aim of stopping people from going back to the laboratories if they had consumed alcohol.

The defendant denied liability on the basis that it had not paid for the party; it had been organised by volunteers within the workforce in their own time and it was not compulsory or expected that people would attend. Also, there had never been a problem with alcohol consumption, an appropriate risk assessment had been undertaken and security guards had been present.

The defendant specifically submitted that it had acted reasonably in all the circumstances. After the accident, the defendant’s investigations led to recommendations to amend the declaration signed by guests to include a provision for them to act responsibly and for an email to be sent in advance of an event encouraging responsible behaviour. Also, there were recommendations for anyone behaving inappropriately to be asked to leave immediately, which the defendant submitted was an unwritten policy at the time of the accident.

Decision at first instance

The recorder held that the defendant owed the claimant a duty of care which could extend, in certain circumstances, to the actions of third parties. However, it was found that there had been no breach of duty bearing in mind the fact that attendees were limited to those connected with the research institute and there had been no previous incidents of this nature.

On the facts, the recorder was satisfied that nothing had been seen or reported about Mr Belik’s behaviour and the defendant’s risk assessment had been reasonable in the circumstances. It was specifically stated that just because the effects of alcohol consumption had been identified to a limited extent (i.e. to staff going back to the lab after drinking alcohol), it did not mean that the defendant should have risk assessed what might occur if someone who had consumed alcohol did something untoward on the dance floor.

In respect of vicarious liability, the recorder noted the cases of Mohamud v WM Morrison Supermarkets Plc [2016] UKSC 11 and Cox v Ministry of Justice [2016] UKSC 10, and the need to apply a two stage test for determining whether or not vicarious liability exists.

He noted that the questions to consider are:

  1. Is the relationship one of employment or akin to employment?
  2. If so, was the tort sufficiently closely connected with that employment or quasi employment?

In respect of the first question, Mr Belik was not employed by the defendant but his role as a visiting scientist meant that he was sufficiently integral to the defendant’s business for the defendant to be at least potentially liable for his actions or omissions.

In respect of the second question, the recorder referred to the decision in Mohamud and considered (a) the functions or field of activities that had been entrusted to Mr Belik, i.e. what was the nature of his job and (b) whether there was sufficient connection between his wrongful conduct and his activities for the defendant, to make it right for the defendant to be held liable under the principles of social justice.

It was held that Mr Belik’s presence at the party had nothing to do with the work which he undertook for the defendant. Also, his act of lifting the claimant had nothing to do with his relationship with the defendant and was not an act that was sufficiently connected with his assigned activities as a researcher.

The recorder stated that the case was akin to Graham v Commercial Bodyworks Ltd [2015] EWCA Civ 47 because Mr Belik was engaged on a “frolic” of his own and his actions on the dance floor were not connected to his work duties.

As a result, the recorder held that the defendant was not in breach of duty or vicariously liable for the actions of Mr Belik. The claim was dismissed.

High Court decision

The claimant appealed the decision on the basis that the field of activities assigned to Mr Belik was to “… interact with fellow partygoers in alcohol-infused revelry, leading to the setting aside of the ordinary boundaries of social interaction; all of which was authorised by [the defendant] for its own benefit, since it stood to gain from the enhancement of its employees’ morale.”

Lane J held that it would be going too far to find that Mr Belik attending the party was sufficiently connected to his work. He was permitted to be there but it was too much to say that the defendant should be vicariously liable for his actions.

It was specifically stated that the “…desirability of enabling those who have suffered injury at the hands of others to recover adequate financial compensation needs to be balanced against the wider social consequences which may ensue from achieving the result through the imposition of vicarious liability.” 

Also, it was held that the demand of social justice in cases involving vicarious liability is “not a one-way street” and the standard of care would be too high if the defendant was required to risk assess all eventualities stemming from people drinking at a party where alcohol was provided.

The party was voluntary and therefore a distinction could be drawn between this case and the decision in Bellman v Northampton Recruitment Ltd [2018] EWCA Civ 2214. In Bellman the Court of Appeal made· a finding of vicarious liability against the defendant because the managing director, who had committed the assault, still had his “work hat” on at the material time and had carried out the assault in response to what he had perceived as a challenge to his authority as managing director. It could therefore be seen that the assault was sufficiently connected to his role as managing director for it to be fair and just for vicarious liability to be imposed on the defendant.

It was held that this case was different to the facts in Bellman and it would not be fair or just to categorise Mr Belik’s attendance at the Christmas party as being within his “field of activities” for the defendant.

Lane J agreed with the recorder’s decision that Mr Belik’s field of activities, being his research work, were not sufficiently connected with what happened at the party for vicarious liability to attach. Also, it was agreed that reasonable steps had been taken by the defendant who was not in breach of their duty of care or negligent in the circumstances. The claimant’s appeal was dismissed.

Impact

This case highlights what we already know that vicarious liability will not only apply to employer/employee relationships but can also apply where the tort is committed by a “worker”, quasi-employee or contractor. However, there must be sufficient connection between the tort committed and the field of activities assigned to that person. It was also made clear by the High Court that there must be sufficient connection between the work carried out by the tortfeasor on behalf of the defendant and the tort committed.

When assessing the social justice for imposing vicarious liability in situations like this  Lane J stated that the ascertainment of what it requires “… which lies at the heart of the law on vicarious liability, is not a journey down a one-way street.” It was specifically stated that it would be unjust for the defendant to be found vicariously liable for the acts of Mr Belik due to the fact that he had simply attended a Christmas party, which they had organised.

This judgment indicates that there are to be some limits to what a defendant can be held vicariously liable for and that the consequences of further expanding the scope of vicarious liability has to be balanced against the consequences and burden it places on defendants.


news_21734  Houghton_S_Web

Authored by Sharon Moohan, partner and Sophie Houghton, professional support lawyer

 

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