Background: Vicarious Liability
Vicarious liability is concerned with the imposition of strict liability on an individual or company who has control of, or responsibility over, an individual who negligently causes injury to another or would otherwise be liable.
The requirements of social justice are strong in this area of the law and can result in decisions from the courts which at first glance appear inconsistent. A prominent feature in recent decisions is the court's readiness to extend a remedy to vulnerable people who the court considers are in need of protection. This is particularly so in cases which have involved sexual abuse or deliberate physical violence perpetrated by employees.
The most recent authoritative statement of the relevant legal principles was set out by Lord Toulson in the Supreme Court in Mohamud v Wm Morrison Supermarkets Plc (2016).
He explained that two questions must be considered in establishing vicarious liability:
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What functions or 'fields of activities' have been entrusted by the employer to the employee (or an individual in a relationship akin to that of employment)? This question must be addressed broadly;
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Whether there is a sufficient connection between the position in which the individual was employed and the wrongful act. The finding of a sufficient connection is underpinned by the requirements of social justice. Cases which establish the necessary connection are those in which, per Lord Toulson, "…the employee misused his position in a way that injured the claimant and that is the reason that the employer who selected him and put him in that position should be held responsible"
A justification for the imposition of vicarious liability is that the employer benefits from the ‘field of activities’ which he has employed the employee to undertake. In the case of Bazley v Curry [1999] 2 SCR 534 in the Supreme Court of Canada, McLachlin J explains that one who employs others to advance his or her own economic interest should be placed under a corresponding liability for losses incurred in furthering that enterprise.
That element of the previous case law needs to be borne in mind when understanding the recent case of Shelbourne v Cancer Research UK (2019) in the High Court and in distinguishing it from the case of Bellman v Northampton Recruitment Ltd (2018) in the Court of Appeal. At first sight the cases appear similar, both arise in the context of work Christmas parties, but they resulted in different outcomes.
The facts in Mrs Shelbourne’s claim
The case concerns the 2012 Christmas party of the Cambridge Research Institute of the charity Cancer Research UK (CRUK). Mrs Shelbourne, the claimant, was an employee of CRUK. The wrongdoer, Mr Robert Beilik was a visiting scientist at the Institute engaged in research, and was not employed by CRUK.
The party consisted of a buffet, games, a ceilidh and a disco. Alcohol was available to partygoers. The event was ticket only and tickets were available to staff and their guests. Although Mr Beilik was not employed by CRUK, his involvement with the Institute qualified him to attend the party.
At around 10.30 pm that evening, the claimant was on the dance floor when Mr Beliek, who had been drinking alcohol for some hours by that stage, attempted to lift her off the ground. He then lost his balance and dropped her. As a result, the claimant sustained a serious back injury. Before lifting the claimant he had already lifted three other women without their consent, but these instances had either been laughed off or were not reported to party organisers.
The claimant had two avenues by which to pursue a liability finding against CRUK. The first was primary liability in negligence. The second was secondary, strict liability, for the actions of Mr Beilik under the doctrine of vicarious liability. Both the court at first instance and the High Court on appeal exonerated CRUK from either liability. This note is principally concerned with the court's findings in respect of vicarious liability and its implications for the law in this area.
The first instance decision
The first instance decision was made by Mr Recorder Catford following a trial at Southend County Court in January 2018.
You may expect that the fact Mr Beilik was not employed by CRUK would have a bearing here. However, the Recorder found that Mr Beilik’s relationship with CRUK was analogous to that of employment and this point was not appealed to the High Court. Mr Beilik “…was a sufficiently integral part of the business of CRUK to render CRUK potentially vicariously liable for his acts and omissions”.
The remaining questions which fell for consideration were those referred to above by Lord Toulson in the Supreme Court in Mohamud. At the subsequent appeal, it was accepted that the Recorder had not fully separated out the questions of a) the functions or ‘fields of activities’ entrusted to Mr Beilik by CRUK and b) whether or not there was a sufficient connection between those and the wrong for it to be right that CRUK should be found vicariously liable for Mr Beilik’s actions.
Nevertheless, the Recorder found in favour of CRUK. He noted that “Beilik was not required by CRUK to attend [the party]. More importantly, Beilik’s presence at the party had nothing to do with the work which he undertook…His act of lifting the claimant had nothing to do with his relationship with CRUK. It had nothing to do with his research work, either directly or indirectly…Nor, in my judgement, applying the modern law, was it an act so closely connected with his employment that it would be fair and just to hold the defendant vicariously liable”.
Recorder Catford went on to state “What was provided was an opportunity by being at the party. However, Beilik’s actions were not inextricably woven with the functions which he undertook at CRUK’s premises…In those circumstances, the case of vicarious liability on the part of the defendant for Beilik’s actions fails”.
The claimant appealed to the High Court.
The appeal decision
Mr Justice Lane dismissed the claimant's appeal.
In his view, Lord Toulson’s assertion in Mohamud that an employee’s ‘field of activities’ should be considered broadly did not mean that that it had no boundaries, and Lane J was unconvinced by the claimant's submissions in this respect. According to the claimant, the relevant ‘field of activities’ of Mr Beilik that evening “…was to interact with fellow partygoers in alcohol fuelled revelry, leading to the ordinary setting aside of the boundaries of social interaction; all of which was authorised by CRUK for its own benefit as it stood to gain from enhancement of its employees' morale”
Lane J found that the above description overstated the self-interest of CRUK in holding the party and that CRUK’s motivation for holding the party was not primarily, or even significantly, to derive a benefit for its operations.
He distinguished the case of Bellman which had also concerneda works Christmas party. The claimant in that case had been assaulted by Mr Major, the managing director of the defendant company, during a late night drinking session following the party. Lane J made clear the fact that the defendant in Bellman “…had put on an office Christmas party was not regarded by the Court of Appeal as justifying the imposition of vicarious liability; nor, indeed was the fact that the party had led to a late night drinking session. Rather, it was Mr Major’s control of the proceedings, at all material times, and his reaction to what he perceived to be a challenge to his authority as managing director, which made the company vicariously liable for his actions”.
For the reason set out above, Mr Major’s actions in the Bellman case were found to fall within his ‘field of activities’ as managing director. In contrast, Lane J found that Mr Beilik’s field of activities was his research work in the lab. He was not doing this work when he attempted to lift the claimant off the ground, and his research work in the lab had ended hours before this incident occurred.
Lane J stated “the ascertainment of what social justice requires, which lies at the heart of the law on vicarious liability, is not a journey down a one way street. The desirability of enabling those who have suffered injuries at the hands of others to recover adequate financial compensation needs to be balanced against the wider social consequences which may ensue when achieving this result through the imposition of vicarious liability”.
Returning to Lord Toulson’s two tests in Mohamud, Lane J concluded that Mr Beliek’s ‘field of activities’ was his research work and that this field was not sufficiently connected with the party so as to give rise to vicarious liability for CRUK.
Wider implications of the decision
The trend of the last couple of decades has been a widening of the scope of vicarious liability, particularly in cases where the court considers that the interests of social justice require it to extend protection to vulnerable people. In this decision we see how the interests of social justice also define the boundaries of vicarious liability.
An important component in considering the requirements of social justice here is the idea that the employer’s business activities stand to benefit from the employee’s field of activities. That is seen to justify the imposition of vicarious liability when an action taken by an employee within that field, whether with the purpose of furthering the employer’s business activities or not, leads to injury or loss to another. That justification was not present on the facts of this case.
This case reminds us that keeping in mind the importance of social justice, and looking closely at the individual facts of cases, is needed to understand and predict the court's decisions in this area of the law.
Contact
For further information please contact Caroline Hickerton, Associate on 0161 603 5234 or at caroline.hickerton@dwf.law
