Court of Appeal finds vicarious liability for violence of managing director during aftermath of company's Christmas party
Bellman v Northampton Recruitment Ltd
Court of Appeal
11 October 2018
Earlier this month the Court of Appeal handed down judgment in Bellman v Northampton Recruitment Ltd (2018). Samantha Chambers and Paul Donnelly consider the implications of the judgment which continues the line of recent appellate court decisions concerning vicarious liability for physical assaults or criminal acts.
Background: vicarious liability
Vicarious liability is of course the principle by which the victim of a tort has a cause of action against another party other than the person who committed the tort, such as an employer or some other person in a position of control over, or who has responsibility for the tortfeasor's actions.
In the case of Lister v Hesley Hall (2001) the House of Lords, in holding the defendant school vicariously liable for sexual assaults committed by its warden against boarding pupils, set out the 'close connection' test which has formed the basis of vicarious liability jurisprudence for almost the last 20 years. That test imposed vicarious liability on the defendant where it was just and reasonable to do so because the tort in question was closely connected to the employee's duties (where such duties were to be looked at broadly).
The cases which followed Lister saw the 'close connection' test applied in a number of factually diverse claims in which vicarious liability was found to attach to the defendant – from a violent physical assault by a nightclub bouncer (Mattis v Pollock (2003), to a shooting by an off-duty police officer (Bernard v Attorney General of Jamaica (2004), to harassment of a fellow employee (Majrowski v Guy's, St Thomas' NHS Trust (2006), through to cases of sexual assault by church figures (Maga v Trustees of the Birmingham Archdiocese of the Roman Catholic Church (2010); Various Claimants v Institute of the Brothers of the Christian Schools (2012).
The current leading authority on the appropriate test in establishing vicarious liability is the decision of the Supreme Court in the conjoined appeals of Cox v Ministry of Justice (2016) and Mohamud v WM Morrison Supermarkets Plc (2016) which we reviewed in our update, Vicarious liability is on the move
The facts in Mr Bellman's claim
Mr Bellman, the claimant, was an employee of the defendant company, of which the tortfeasor, Mr Major, was the managing director. The company is a small franchise of a national HGV drivers' agency with eleven members of staff. The claim arose from a physical assault by Mr Major on Mr Bellman at an impromptu drinks gathering following the company's Christmas party at which the majority of the defendant's employees and their partners had been in attendance.
The party had been paid for by the defendant company, as well as taxis and accommodation for a number of guests at a nearby hotel. At the end of the party, Mr Major had paid for taxis to take those who wanted to go to the hotel for unplanned further drinks and five or six of the defendant's staff had taken up the offer (together with their guests). The group then sat drinking in the hotel lobby from around 12.30am well into the early hours.
At around 2am, the conversation between Mr Major and the four remaining employees turned to work and stayed on the topic thereafter. About 45 minutes later a group of six, including the claimant and Mr Major went outside, during which the claimant raised with Mr Major some concerns held by some of the staff about a new employee (a Mr Kelly) who was understood to be paid significantly more than anyone else.
Mr Major's response was to return to the lobby and "summon" the remaining employees to lecture them about his position in the company and that he was in charge and would not have his decisions questioned. When the claimant questioned whether Mr Kelly should be based in a different office, Mr Major swore at him and punched him, causing him to fall to the floor. The claimant got back up and held his hands out in surrender, but Mr Major pushed past two employees who tried to hold him back to run at the claimant and hit him with "a sickening blow". The injuries sustained by the claimant were extensive, such that he did not have capacity to bring the claim against the defendant himself.
First instance decision
The trial judge, His Honour Judge Cotter QC, had dismissed the claimant's claim at first instance, holding that the actions of Mr Major could not be held to be closely connected enough to his role as managing director of the defendant to impose vicarious liability on it.
Despite making factual findings that Mr Major was "not only the managing director but also the directing mind and will of this small company… I suspect that for much of his week Mr Major was either directly working on company business or available for consultation or direction… much of what Mr Major did during the average working day… could be considered within his role as the managing director…" the judge felt that it would be a step too far to impose vicarious liability in this case.
He felt that the attendance at an "entirely independent, voluntary, and discreet early hours drinking session" following the Christmas party during which the conversation turned to work was too far removed from Mr Major's employment duties, stating:
"… it cannot be right that the effect of such a wide range and duration of duties is that Mr Major could always be considered to be on, or potentially on duty, solely because he was in the company of other employees regardless of circumstances."
Effectively, HHJ Cotter QC was drawing a distinction between this situation and one with, for example Father Clonan in Maga (2010) where it was held that a priest is never off duty owing to the nature of his role and the air of authority given by the role.
Court of Appeal decision
The trial judge's factual findings were not challenged in the appeal, which centred on his application of the close connection test to those factual findings.
Lady Justice Asplin, delivering the leading judgment, considered that looking at previous case law "through the prism of Lord Toulson's analysis in Mohamud" required the court to make an evaluative judgment as to whether there was sufficient connection to Mr Major's employment duties and wrongful conduct to make the defendant liable – "It is a question of law based upon the primary facts as found".
Asplin LJ noted the "wide remit" with which Mr Major was entrusted by the defendant company, commenting that he "was in overall charge of all aspects of [the defendant]'s business" and that he "would have viewed the maintenance of his managerial authority as a central part of his role".
Asplin LJ rejected the defendant's argument that the yardstick by which to determine Mr Major's field of activities was actual authority (arguing that Mr Major would never be authorised to call a meeting at 3am when inebriated, therefore the situation giving rise to this claim could not be within the scope of his employment), noting that the Mohamud judgment would have been different if the Supreme Court had considered this correct and that cases as far back as the 1970s (Rose v Plenty (1975) would have been decided differently. Asplin LJ concluded that "looking at the matter objectively, on the facts as found, both Mr Major's remit and his authority were very wide".
Turning then to the question as to whether the assault on the claimant was sufficiently connected to Mr Major's very wide field of activities for the defendant, Asplin LJ disagreed with the trial judge's characterisation of the circumstances as a disagreement between fellow revellers at an unscheduled drinking session. Asplin LJ felt that "despite the time and the place, Mr Major was purporting to act as managing director… He was exercising the very wide remit which had been granted to him… His managerial decision making having been challenged, he took it upon himself to seek to exercise authority over his subordinate employees."
She considered that in summoning and lecturing the remaining employees upon his return to the lobby, Mr Major had put on his "metaphorical managing director's hat" and purported to use his position to drive home his managerial authority with the use of blows.
The earlier cases of Bernard v Attorney General of Jamaica (2004) and Ministry of Defence v Radclyffe (2009) were noted as providing authority for imposing vicarious liability in circumstances where employees had misused their position of authority, even when off-duty: in the present case, despite the time and place involved "Mr Major's position of seniority persisted and was a significant factor".
The wider impact of the decision
At first glance, there could be concern that the Bellman decision could lead to a significant widening of the present vicarious liability doctrine to include any altercation between a supervising or senior employee and a subordinate, regardless of the context (particularly with the Christmas party season on the horizon).
However, in his supporting judgment, Irwin LJ emphasised that the facts of this case were very unusual, stating that the combination of such a wide authority on the part of Mr Major and the assault as the way in which Mr Major sought to exercise that authority "will arise very rarely" and that "Liability will not arise merely because there is an argument about work matters between colleagues, which leads to an assault, even when one colleague is markedly more senior than another".
While it is noted that the crucial factor in this case was that the discussions about work developed into Mr Major asserting his authority, and despite the reassurance in the judgment that there will be limited application outside of this case, it could be difficult to distinguish cases in which similar discussions about work lead to a disagreement in which a relatively senior manager feels their decisions are being questioned and seeks to reinforce their authority.
Whilst it may not be necessary to cancel or restrict work Christmas parties just yet, this judgment is a sobering reminder of how far beyond an employee's strict work duties the doctrine of vicarious liability can reach, and that the courts' social justice policy that it is an employer and not a claimant who should pay the price for the actions of an ill-tempered or unsuitable employee appears set to continue for the foreseeable future.
Where serious injury follows, it is often ultimately the insurers of the employer who will end up footing the bill. The judgment might cause insurers to give thought as to guidance provided to their insureds, particularly smaller commercial businesses, to better manage the risks presented by works Christmas parties and away days.
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.