The Court of Appeal decision in the case of Clive Bellman v Northampton Recruitment Ltd provides yet further indication as to the rapidly evolving law in relation to vicarious liability.
Vicarious liability refers to the situation whereby an employer may be held liable for the negligent acts and omissions of an employee where that employee is acting in the course of their employment.
Recent cases in this area have focused on the concept of when a particular employee is acting in the course of their employment or not. There must be a sufficiently close connection between the position in which the employee is employed, and the negligent act.
The earlier case of Mohamud v W M Morrisons Supermarkets plc [2016] AC677 was clear evidence of evolution in this area of law. In that case it was held that the employers of a petrol station forecourt attendant were vicariously liable for the actions of that attendant when he viciously assaulted a customer following an alteration within the petrol station. The mere fact that he had been employed in a customer service role and the fact he was “relating” to the customer within that role was enough for a sufficient connection to be created between the act and the employment.
The appeal in Bellman v Northampton Recruitment Ltd follows the same logic, albeit in very different circumstances.
Mr Bellman was employed by the Defenders as a Sales Manager. The Defender held a Christmas party for all staff and partners at the Collingtree Golf Club in Northampton. The party was attended by 10 of the 11 members of staff. In attendance at the Christmas party was the Director of the company, a Mr Major. He was the Managing Director and the “directing mind and will” of the company. It was considered that he would have considered it his responsibility to ensure the smooth running of the party and consequently he was not merely an attendee. The Defenders paid for the food and drink at the party (subject to a bar limit) and for all taxis and accommodation for the majority of the guests at a nearby Hilton Hotel. The party was drawing to close around about midnight at which point Mr Major paid for taxis to take anyone who wanted to go to the Hilton Hotel for further drinks. It was not a pre-planned extension of the party, however despite this, 13 to 15 of the original 24 attendees, including 5 or 6 of the Defender’s staff attended The party goers arrived at the hotel between 12:30am and 1am. Most, but not all, were staying overnight at the hotel (at the Defender’s expense). On arrival at the hotel, the group continued to drink and engage in discussion of a wide variety of topics. The vast majority of the drinks were paid for by the Defender. After some time, Mr Major’s two guests and their partners went to bed which left Mr Major in the lobby with 4 other employees and their partners (including Mr Bellman).
At around 2am, the conversation amongst the remaining employees turned to work, including business plans for the New Year. Thereafter at all times the conversation was focused on business matters. At 2:45am, a group of 6, including Mr Major and Mr Bellman went outside and continued to discuss the Defender’s business. Mr Bellman mentioned a Mr Stephen Kelly, a new employee for the Defenders. Mr Kelly had been the subject of a conversation in the office and it was understood he was being paid more than the other employees. Mr Major being questioned on this became defensive and annoyed and at this point returned to the hotel lobby.
Once inside, he summoned the remaining employees and began to lecture them in relation to his ownership of the company, the fact he was in charge and that ultimately he would do what he wanted to do. In short, the decisions were his and he paid the wages. Mr Major at this point was significantly inebriated and was losing his temper.
The fateful exchange involved Mr Major using some choice language to suggest that Mr Kelly was in the right position and in the right office within the firm. As he suggested this, Mr Bellman in a non- aggressive manner, stated it would be better if Mr Kelly were based in Nuneaton. Mr Major responded aggressively and his retort was followed by a punch which knocked Mr Bellman to the ground. Mr Bellman rose from the punch bleeding from his left eye, holding out his hands in a gesture of surrender stating “John what are you doing, don’t do this”. However, at this point Mr Major appears to have lost all control, the attempts by Mr Hughes and Mr Hammond to hold Mr Major back failed and CCTV coverage showed him breaking free, running to Mr Bellman and delivering what is described as a sickening blow with his right fist. This knocked him to the ground and he fell back, hitting his head sustaining a fractured skull, subdural and subarachnoid haemorrhages and a left frontal lobe contusion leading to traumatic brain damage. Mr Bellman’s injuries were life changing.
There was no doubt that Mr Major was responsible for the injuries suffered by Mr Bellman. However, the key question before the court was whether Mr Major’s employers, the Defenders, were vicariously liable for his actions. The primary issue was whether at 2:30am in an argument at an after party was Mr Major engaged in the course of his employment. Was there a sufficiently close connection?
The Court of Appeal in Bellman revisited Mohamud v W M Morrisons Supermarkets plc. In that case, the court must consider 2 matters:
- What was the nature of the job entrusted to the employee by the employer, and did the negligent act or omission fall within the nature of the job.
- Was there a sufficient connection between the position in which the individual was employed and the wrongful conduct to make it right for the employer to be held liable under the principals of social justice.
Utilising this test it was held that despite the conduct that the employee engaged in being absolutely inexcusable it was, nevertheless within the field of activities assigned to him and that created the sufficient connection between his employment and the wrongful act.
In the present case, the Court of Appeal concluded that the trial Judge was incorrect to conclude that there was not a sufficient connection between Mr Major’s field of activities and the assault in the hotel at 3am.
At the time of the assault, the Court of Appeal held that Mr Major was acting in his capacity as a Managing Director. He was, in effect, exercising the very wide remit that had been granted to him by the Defender. It was his managerial decision within the confines of the business that had been challenged and it was his decision thereafter to seek to exercise his authority over subordinate employees. The very lecture he delivered was concerned with the nature and extent of his authority in relation to the business and over his fellow employees. At this point, he chose to don the metaphorical “Managing Director’s hat”. It was whilst still wearing that “hat”, that he thereafter perpetrated the assault leading to Mr Bellman’s injuries. The attack arose from a misuse of the position entrusted to Mr Major as a Managing Director. The unscheduled drinking session was not a seamless extension of a work Christmas party and attendance was voluntary, however, the drinking session had to be seen against the background or the context of the evening’s events. It was not an impromptu drinks party between work colleagues which may happen in any night of the week after work but rather the drinking occurred the same evening as a work event paid for, orchestrated and controlled by Mr Major on behalf of the Defenders. Mr Major had already been fulfilling his managerial duties for a large part of the evening. He had orchestrated the party, organised and paid for the taxis to the hotel and continued to provide drinks which were paid for by the company. Mr Major was not merely a reveller. He was present as the Managing Director of the Defender.
It is held that the circumstances in this case were fairly analogous to those in Mohamud and consequently vicarious liability was found to apply.
As detailed above, this is a further example of the ever growing and evolving law surrounding vicarious liability.
