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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Shelbourne v Cancer Research UK [2019] EWHC 842 (QB) (09 April 2019) URL: https://www.bailii.org/ew/cases/EWHC/QB/2019/842.html Cite as: [2019] EWHC 842 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
MRS SANDRA SHELBOURNE | Appellant | |
| -and- | ||
CANCER RESEARCH UK | Respondent |
____________________
Matthew White (instructed by DAC Beachcroft ) for the Respondent
Hearing date: 28 February 2019
____________________
VERSION
OF JUDGMENT APPROVED
Crown Copyright ©
MR JUSTICE LANE :
A. INTRODUCTION
Research
Institute of
Cancer
Research
UK
(CRUK), a well-known charity, which carries out
research
into the origins and treatment of
cancer.
The Institute occupied premises at the Li Ka Shing Centre, which CRUK leased from the University of Cambridge. The 2012 Christmas party was the third that the Institute had held at the Centre. Each year a different department took responsibility for organising the party, using
volunteer
members of staff from the department concerned. In 2012 it was the turn of the Genomics Department, headed by Mr James Hadfield.
visiting
scientist at the Institute, employed by the University in Cambridge at its Wolfson Institute Brain Imaging Centre. He was not employed by CRUK but his involvement with the Institute entitled him to a security pass and to attend the party, along with CRUK's employees.
volunteer
organisers of the party. He lifted her up and put her down straight away. She laughed and went on her way and, she said, "gave it no further thought".
vicariously
liable for Robert Beilik's actions.
vicarious
liability.
B. MAJOR CASE LAW
v
Comojo (
UK)
Ltd [2011] EWCA Civ 13, a guest in a members' club, a nightclub known as the Met Bar, attacked and injured another guest, stabbing him in the neck and abdomen. A waitress had earlier reported her concern about the attacker to her bar manager, rather than to one of the door supervisors.
"Foreseeability of injury.
32. It is a well-known fact that the consumption of alcohol can lead to the loss of control andviolence
both
verbal
and physical. Lord Faulks acknowledged as much. In the present case, Comojo's own risk assessment recognises the existence of those risks. It must be foreseeable to any licensed hotelier that there is some risk that one guest might assault another. The risk may be low in respectable members-only establishments and much higher in a night club open to the public. The assessment of the degree of risk, which will dictate what precautions have to be taken, will
vary.
There cannot be any rule of thumb to apply to all night clubs. But it does not seem to me that, given its own risk assessment, Comojo could seriously argue that the risk of such assault was so low that it could safely be ignored."
"36. The common duty of care is an extremely flexible concept, adaptable to thevery
wide range of circumstances to which it has to be applied. It can be applied to the static condition of the premises and to activities on the premises. It can give rise to
vicarious
liability for the actions of an employee of the occupier who, for example, might have created a temporary tripping or slipping hazard. I think that it is appropriate (fair, just and reasonable) that it should govern the relationship between the managers of an hotel or night club and their guests in relation to the actions of third parties on the premises. I do not think it possible to define the circumstances in which there will be liability. Circumstances will
vary
so widely. However, I think it will be a rare night club that does not need some security arrangements which can be activated as and when the need arises. What they need to be will
vary.
One can think of obvious examples where liability will attach. In a night club where experience has shown that entrants quite often try to bring in offensive weapons, it may be necessary to arrange for everyone to be searched on entry. In a night club where outbreaks of
violence
are not uncommon, liability might well attach if a guest is injured in an outbreak of
violence
among guests and there is no one on hand to control the outbreak. It may be necessary for the management of some establishments to arrange for security personnel to be present at all times within areas where people congregate. On the other hand, in a respectable members-only club, where
violence
is
virtually
unheard of, no such arrangements would be necessary. The duty on management may be no higher than that staff be trained to look out for any sign of trouble and to alert security staff.
37. In my judgment, the judge was also right in his conclusion that, in all the circumstances, Ms Kotze had not been in breach of duty. She had realised that there was a possibility of a confrontation between Croasdaile and one or more of the members of the appellants' group. Why she acted as she did, in going to speak to Mr Rosenblatt rather than summoning a door supervisor is not known; she was not available to give evidence. The judge could only consider whether a reasonable waitress in her position would have gone to fetch a door supervisor. In myview
the judge's assessment of the reasonableness of her action is unassailable. There was no reason to think that a confrontation was imminent. The incident to which Mr Balubaid had taken exception had occurred a considerable time earlier. Certainly, Croasdaile's appearance gave rise to some concern but he was apparently Mr Balubaid's employee and Mr Balubaid was a
valued
customer with no previous history of causing trouble, either himself or through his employees. I would endorse the judge's conclusion that Ms Kotze could not have been criticised even if she had done nothing. As it was, she went to speak to her manager. That seems to me to have been a
very
sensible thing for her to do. A waitress in her position would not have wished, on her own initiative, to take a step which might have caused offence to Mr Balubaid and embarrassment to the club, by asking a door supervisor to intervene in some way. Telling Mr Rosenblatt about the situation and letting him decide what to do seems sensible. There was no apparent urgency; it was not as if a confrontation had begun and the risk of
violence
was imminent."
view,
Mohamud
v
W Morrisons Supermarkets [2016]
UKSC
11 is a landmark in the law of
vicarious
liability. The claimant, having stopped at the petrol station outlet of a Morrisons supermarket in the Midlands, went to the sales kiosk to ask the employee there if it was possible to print-off some documents stored on a USB stick. The employee refused the request in an offensive manner, following the claimant back to the latter's car, where he subjected the claimant to a serious physical attack.
vicariously
liable for this assault since the employee's actions had been purely for reasons of his own and beyond the scope of his employment. There was, accordingly, an insufficiently close connection between the assault and the employment.
v
Ministry of Justice [2016]
UKSC
10), Lord Toulson set out the remaining matters that must be decided in favour of a claimant, in order to establish
vicarious
liability:-
"44….The first question is what functions or "field of activities" have been entrusted by the employer to the employee, or, in everyday language, what was the nature of his job. As has been emphasised in several cases, this question must be addressed broadly; see in particular the passage in Diplock LJ's judgment in Ilkiwv
Samuels [1963] 1 WLR 991, 1004 included in the citation from Rose
v
Plenty at para 38 above, and cited also in Lister by Lord Steyn at para 20, Lord Clyde at para 42, Lord Hobhouse at para 58 and Lord Millett at para 77.
45. Secondly, the court must decide whether there was sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice which goes back to Holt. To try to measure the closeness of connection, as it were, on a scale of 1 to 10, would be a forlorn exercise and, what is more, it would miss the point. The cases in which the necessary connection has been found for Holt's principle to be applied are cases in which the employee used or misused the position entrusted to him in a way which injured the third party. Lloydv
Grace, Smith & Co, Peterson and Lister were all cases in which the employee misused his position in a way which injured the claimant, and that is the reason why it was just that the employer who selected him and put him in that position should be held responsible. By contrast, in Warren
v
Henlys Ltd any misbehaviour by the petrol pump attendant, qua petrol pump attendant, was past history by the time that he assaulted the claimant. The claimant had in the meantime left the scene, and the context in which the assault occurred was that he had returned with the police officer to pursue a complaint against the attendant.
46. Contrary to the primary submission advanced on the claimant's behalf, I am not persuaded that there is anything wrong with the Lister approach as such. It has been affirmed many times and I do not see that the law would now be improved by a change ofvocabulary.
Indeed, the more the argument developed, the less clear it became whether the claimant was advocating a different approach as a matter of substance and, if so, what the difference of substance was."
"47… when Mr Khan followed the claimant back to his car and opened the front passenger door, he again told the claimant in threatening words that he was never to come back to the petrol station. This was not something personal between them; it was an order to keep away from his employer's premises, which he reinforced byviolence.
In giving such an order he was purporting to act about his employer's business. It was a gross abuse of his position, but it was in connection with the business in which he was employed to serve customers. His employers entrusted him with that position and it is just that as between them and the claimant, they should be held responsible for their employee's abuse of it.
48. Mr Khan's motive is irrelevant. It looks obvious that he was motivated by personal racism rather than a desire to benefit his employer's business, but that is neither here nor there."
"54. It is true that the test is imprecise. But this is an area of the law in which, as Lord Nicholls said, imprecision is inevitable. To search for certainty and precision invicarious
liability is to undertake a quest for a chimaera. Many aspects of the law of torts are inherently imprecise. For example, the imprecise concepts of fairness, justice and reasonableness are central to the law of negligence. The test for the existence of a duty of care is whether it is fair, just and reasonable to impose such a duty. The test for remoteness of loss is one of reasonable foreseeability. Questions such as whether to impose a duty of care and whether loss is recoverable are not always easy to answer because they are imprecise. But these tests are now well established in our law. To adopt the words of Lord Nicholls, the court has to make an evaluative judgment in each case having regard to all the circumstances and having regard to the assistance provided by previous decisions on the facts of other cases."
v
Northampton Recruitment Limited [2018] EWCA Civ 2214, Mr Major, the managing director of the defendant company, seriously assaulted the claimant, one of its employees, during a late-night drinking session in a hotel, which had followed the company's Christmas party for its employees. Mr Major committed the assault after losing his temper when his authority had, in his
view,
been challenged by the claimant over a work matter.
"through the prism of Lord Toulson's analysis in Mohamud, which is essential … the question of whether there is sufficient connection between the position in which the wrongdoer is employed and is in wrongful conduct so as to make the employer liable under the principle of social justice requires the court to conduct an evaluative judgment. It is a question of law based on the primary of facts as found". (paragraph 16)
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 sub-ordinate employees". He had chosen "to wear his metaphorical managing director's hat to deliver a lecture to his subordinates […] and drove home his managerial authority, with which he had been entrusted, with the use of blows". He was, accordingly, "not merely one of a group of drunken revellers, his conversation had turned to work". (paragraph 25)
voluntary,
it seems to me that Mr Major was not merely a fellow reveller. He was present as managing director of NR, a relatively small company, and misused that position…". In that regard, Asplin LJ concluded that the case was "a
very
long way from the example being given by a judge of a social round of golf between colleagues during which conversation turns to work… the judge's example is based on different premise". There:-
"… all participants are equal and attend as casual friends and golfers. One can readily see that in such circumstances, even if discussions turn to work and a golfer who happens to be a more senior employee assaults another golfer who is a junior colleague, looked at objectively, they have all attended qua social golfers. The participants in the drinking session, on the other hand, had attended the Christmas party qua staff and managing director. As I have already mentioned, just because the drinking session was unscheduled andvoluntary,
I do not consider that their roles changed or if they did, that on the facts of this case, the role of managing director was not re-engaged." (paragraph 28)
"37. After some hesitation, I also agree, although I wish to emphasise how unusual are these facts, and how limited will be the parallels to this case."
38. The critical reasons why it seems to me that thisvery
experienced judge was wrong are those expressed by Asplin LJ in paragraphs 27 to 29 of her judgment. In my
view
the "field of activity" of Mr Major was almost unrestricted in relation to the affairs of NR, and exercised at almost any time. I consider that the judge was right that the drinking session at the hotel was separate from the firm's Christmas party. What was crucial here was that the discussions about work became an exercise in laying down the law by Mr Major, indeed an explicit assertion of his authority,
vehemently
and crudely expressed by him, with the intention of quelling dissent. That exercise of authority was something he was entitled to carry out if he chose to do so, and however unwise it may have been to do so in such circumstances, it did arise from the "field of activity" assigned to him.
39. It cannot of course be the test that there must be actual authority to commit the tort complained of. This case arose because of the way in which Mr Major chose to exert his authority, indeed his dominance as the only real decision-maker, in the company. Hence there is liability.
40. I do emphasise that this combination of circumstances will arisevery
rarely. 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. This case is emphatically not authority for the proposition that employers became insurers for
violent
or other tortious acts by their employees".
C. THE RECORDER'S FINDINGS AND THE PARTIES' SUBMISSIONS
volunteered
and organised, there would be a benefit in morale but this was not led by CRUK." Asked whether, if CRUK permitted the party to occur then it looked like a CRUK Christmas party, Mr Hadfield replied "only a Scrooge-like organisation would say 'no'".
Viewed
overall, Mr Weir submitted that the Christmas party was, in reality, a "works do". It served the purposes of CRUK, which organised it, through the Genomics Department. CRUK also organised the security cover. Mr Hadfield told the security and bar
volunteers,
before the party, that "if there were any problems they were to speak to him and he would arrange security to help" (judgment, paragraph 43). Any financial losses sustained as a result of holding the party would be covered by CRUK.
viewed
in the same light as the Christmas party in Bellman: that is to say, staff attended qua staff.
v
Comojo
UK
Ltd. The Recorder was satisfied that, applying the analysis of Smith LJ to the present case, where the defendant was the organiser of the event and the claimant was the employee and a paying guest, "there was sufficient proximity of relationship" (paragraph 104).
violence
was
virtually
unheard of.
"114. [W]hether the defendant was in breach of duty resolves into consideration of two broad aspects: (1) the preparation for the holding of the party (which involves consideration of the questions of risk management, security provision and written instructions to guests; and (2) implementation on the night (including whether there was adequate supervision of the party, guests and staff, and whether there were events which were or should have been seen, or which would have resulted in Beilik being either warned or removed).
115. In my judgment, the context in which this event took place is important. It was an event that was not open to the public at large, but was rather limited to those connected with CRUK. If this had been an event open to the public generally then different issues would have arisen in terms of planning and running the event. There would have been a large pool of potential attendees of unknown nature and propensity. That is far removed from a party in which all those attending will be connected with CRUK, either as employees or friends and family of employees. It seems to me that, insofar as relevant, this event was closer to the example given by Smith LJ of the members-only club whereviolence
was
virtually
unheard of, rather than the nightclub examples."
"… accepted that 'today' (his word)… the risk assessment would be clearer on what to do if someone had drunk too much or was acting inappropriately. The declaration could have prevented selling alcohol to those inebriated. He accepted there was no mention of prohibiting those attending bringing alcohol in from outside [Mr Beilik had brought what was described as a small bottle ofvodka].
It could be amended to control behaviour and intoxication under the cover of "appropriate work-related behaviour". However, he did not believe it was needed for the type of people attending, albeit he accepted anybody could drink to excess. He accepted that it would be sensible to have guidance on alcohol being brought in by guests. Whilst there could be express policy of supervision and monitoring, he said in reply that he himself was walking around the whole time, as were others, and he indicated four or five other persons without identifying them by name". (paragraph 44).
vein,
Mrs Pugh accepted that a "sensible precaution would be for the declaration for staff to sign to include staff agreeing to be responsible for their own actions". (paragraph 55). She accepted that no advice or guidance had been given to attendees on how they should behave "and on reflection it should have been" (paragraph 56).
v
London Underground Ltd [2008] EWCA Civ 71:-
"Risk assessments are meant to be an exercise by which the employer examines and evaluates all the risks entailed in his operations and take steps to remove or minimise those risks. They should be a blueprint for action." (paragraph 58)
"119. By skilful cross-examination Counsel for the claimant obtained acknowledgements that alcohol if consumed to excess created a risk of untoward behaviour and a risk of injury. Similarly, the witnesses were then moved on to accept that it would be a "sensible precaution" to get staff to sign declarations. At the same time I formed the impression that Mrs Pugh, for example, was genuinely surprised by the suggestion at the outset, saying that she had never known such a party. I formed the impression from both her and Mr Hadfield that they simply would not have anticipated that such behaviour would have needed warning against, and/or that declarations should have been obtained. Mrs Pugh, notably, qualified her acceptance to what was being put to her in cross-examination with the words, "knowing the events which happened".
120. In my judgment, that underlines an important aspect of this case. There is a danger, in knowing what has happened, and that the claimant suffered serious injury (as to which one can only have sympathy), that hindsight is then used as a basis for criticism of the steps that were taken by the defendant.
121. Turning to risk assessment, it is right that Mr Hadfield made no specific provision for monitoring guests' alcohol consumption; or to risks associated with alcohol consumption in a general sense. He and Mrs Pugh acknowledged that an increased risk of inappropriate behaviour and injury arose where alcohol was available for consumption. In my judgment, the existence of that general risk does not by itself mean that Mr Hadfield's risk assessment was wanting. This had to be seen in context. He obviously did address his mind to alcohol consumption, and therefore the arrangements for non-admission to the laboratories were put in place. It seems to me that that was a sensible step and reflects a reasonable response to risks arising from alcohol consumption in these particular circumstances."
vodka
to the function. Had there been such a prohibition, she would have followed it. (paragraph 57)
very
much a secondary role to manning the security barriers". The Recorder went on to say that the Gurungs did walk through "occasionally and that no problems were seen by them or drawn to their attention. I accept the evidence of CJ Gurung that he did not see anyone being lifted or anything dangerous. I also find that there was no report to either him or his brother of any untoward behaviour".
"Her description of Beilik as being "invery
good spirits" meant that he was drunk when she saw him, but in her words, "not
very
drunk". He was enjoying himself, and there was nothing that needed escalating. She said that once the party started it was not her responsibility to continue watching the staff; there was security staff to do that. She was asked about her reactions at being physically picked up at work. In a normal working environment she accepted it would be inappropriate. At a social area, such as the canteen, it would still be inappropriate. She would report it if she felt personally offended. She felt that a party environment was
very
different."
vicarious
liability, Mr Weir pointed out that there had been no cross-appeal in respect of the Recorder's finding that the position of Robert Beilik,
vis-à-vis
CRUK, was such as to satisfy the test in Cox
v
Ministry of Justice. Accordingly, the relevant questions, as set out in Mohamud, were to do with the two-stage test, involving the nature of the job and whether there was a sufficient connection between it and the tortious action of Robert Beilik.
viewed
through the lens provided by Mohamud, that it was too narrow an enquiry merely to ask whether an assault could be part of an individual's employment. Rather, the test involved the element of public policy. Thus, in Rose
v
Plenty [1976] 1 WLR 141, a milkman who carried a boy on his milk float, in express contravention of his employer's prohibition, nevertheless rendered the employer
vicariously
liable when the boy fell off the float and was injured. The injury occurred whilst the employee was engaged in the business of delivering milk.
Viewed
in this way, an office or works Christmas party, held for the benefit of the employer, meant that workers attended qua workers. The activities in which the workers were engaged, whilst at the party, involved, according to Mr Weir, their being authorised or entrusted by the defendant to drink together and to dance together, so as to become more intimate physically with each other. The purpose, he said, was for the workers to interact in "alcohol-infused revelry where the ordinary boundaries of social interaction are set to one side". In this regard, Mr Weir drew support from paragraph 57 of the judgment, which, as we have seen, recorded Mrs Pugh as saying that, whilst being physically picked up would be inappropriate in the canteen, "a party environment was
very
different".
vicarious
liability in a party environment. Rather, the Court of Appeal had decided the issue on the basis of the degree of authority exercised by Mr Major.
v
Hesley Hall Ltd [2001]
UKHL
22, the House of Lords held that the respondent company was
vicariously
liable for the actions of its warden of a school boarding house, who used his position in order to engage in the systematic sexual abuse of pupils in his care. Lord Steyn held that the "question is whether the warden's torts were so closely connected with his employment that it would be fair and just to hold the employers
vicariously
liable. On the facts of the case the answer is yes. After all, the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties […] Matters of degree arise. But the present cases clearly fall on the side of
vicarious
liability". (paragraph 28)
view
of Robert Beilik's duties and that this was the converse of the "broad approach" required by the higher courts. Thus, at paragraph 155 of the judgment, the Recorder had erred in finding that the act of lifting the appellant had nothing to do with Robert Beilik's relationship with CRUK and that it was, therefore, not an act so closely connected with his employment that it would be fair and just to hold the respondent
vicariously
liable. Once, however, one
viewed
the party in its true light, as Mr Weir had described, the closeness of the connection was manifest. Robert Beilik was engaged in a works party that authorised him to become more intimate with his colleagues. That was the field of activities relevant to determining
vicarious
liability; not his work in the laboratory.
very
drunk". He was enjoying himself "but not so that matters required escalating". The Recorder accepted that evidence "as an accurate and fair description of how Beilik must have appeared to anyone observing him". Mr White said that the use of the word "anyone" was important.
Research
Institute Social and Entertainment Society (CRISES). Those who were not such a member were asked to complete the CRISES declaration form. This pointed out there will be no sale of intoxicating liquid to a person under the age of 18 and that CRUK "cannot permit anyone to return to a laboratory to do experimental work after they have consumed any amount of intoxicating liquor and strongly advise that CRISES members do not return to the laboratory for any reason". The accident report stated that, in the light of the accident that had befallen the appellant, Mr Hadfield (the author) recommended amending the CRISES declaration "whereby all guests agree to act responsibly, and that guests not doing so will be asked to leave the premises".
view
of Mrs Pugh's evidence and how he formed the impression that she was genuinely surprised by the suggestion that staff should sign declarations of the kind just described. Mr White also pointed out that the notes of the hearing compiled on behalf of the respondent recorded Mrs Pugh as saying: "putting it like that, yes" to the question "a drunken man lifting women without consent is an accident waiting to happen".
"129. I am satisfied on the evidence that the behaviour of Beilik was such that he was not reported, nor that it ought to have been otherwise picked up. The lift of Mrs Pugh was not such as to warrant concern on the part of Mrs Pugh. Holness andVan
Look did not report anything. Both the claimant and her husband did not consider Beilik's behaviour was such that it should be reported to security. Mr Hadfield saw nothing untoward.
130. I am satisfied on the evidence that nothing was seen or reported concerning Beilik's behaviour which should have required him being approached, talked to or asked to leave. Nor was there a failure to appreciate behaviour on the part of Beilik, which with the exercise of reasonable care, would have been noted and acted on."
volunteers
(other than the security staff). It would not, Mr White submitted, be desirable to live in a world where all
volunteers,
at functions such as this, had to have training in dealing with issues arising from the consumption of alcohol and that those involved in the preparation of a risk assessment would need yet further training.
"1. Deterrent effect of potential liability
A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions or otherwise), have regard to whether a requirement to take those steps might –
(a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or
(b) discourage persons from undertaking functions in connection with a desirable activity."
Shelbourne
would mean that Christmas is cancelled, if a judge were to say this party's organisers had fallen below the required standard of care, it would act as a disincentive to the running of such events and that would be wrong". The man on a Clapham omnibus, or his modern equivalent, would regard such an outcome as another example of "health and safety gone mad".
vicarious
liability, Mr White emphasised the findings of the Court of Appeal in Bellman that Mr Major had not merely been a "fellow reveller" and that the Court was far from saying that
vicarious
liability should be found to arise in a "works" social gathering, such as a Christmas party.
vicarious
liability was found in the present case, it was difficult to see where a coherent line could be drawn. What, Mr White asked rhetorically, would be the position involving a fight between fellow partygoers, if that occurred outside in the street; or a sexual assault that took place in a taxi on the way home? The Recorder dealt with this correctly in paragraph 155 of his judgment, in finding that what Robert Beilik did with the appellant was not an act so closely connected with his employment that it would be fair and just to hold the defendant
vicariously
liable for it.
v
Samuels [1963] 1 WLR 991, cited with approval by Lord Toulson in paragraph 38 of Mohamud that:-
"[T]he matter must be looked at broadly, not dissecting the servant's task into its component activities – such as driving, loading, sheeting and the like – by asking: What was the job on which he was engaged for his employer? and answering that question as a jury would." (p.1004)
v
Commercial Bodyworks Ltd [2015] EWCA Civ 47, in which it held that an employer was not liable
vicariously
for the actions of an employee who, as a prank, used a cigarette lighter in the
vicinity
of the claimant, whose overalls he had sprinkled with a highly inflammable thinning agent, used at the premises for legitimate purposes. The overalls ignited and the claimant was injured. In dismissing the appeal, Longmore LJ held that the:-
"… wrongful act did not further the employer's aims; there was no friction or confrontation inherent in the employer's enterprise and such intimacy as there was likewise had no connection with that enterprise; it is inappropriate to talk either of power conferred on Mr Wilkinson in relation to Mr Graham or any particularvulnerability
of Mr Graham to the wrongful exercise of such power." (paragraph 14)
"16. The United Kingdom authorities tend to resolve themselves into two groups. On the one hand there are cases in which the use of reasonable force or the existence of friction is inherent in the nature of the employment; thus a nightclub owner may bevicariously
liable for injuries caused by force used by a bouncer in the course of his duties and a rugby club owner may be
vicariously
liable for injuries caused by a punch-up during or in the immediate aftermath of a game: see Mattis
v
Pollock (trading as Flamingos Nightclub) [2003] ICR 1335 and Gravil
v
Carroll [2008] ICR 1222. Similarly there are cases of what one might call normal friction in the workplace which gets out of hand as opposed to uncalled for antagonism which, while occurring in the workplace, originates outside it.
…
18. Somewhat closer is a second group of cases in which the nature of the employment is not such as to require the exercise of some force or to involve the kind of friction inherent in an employment relationship. These cases derive from intentional acts at the work place (whether horseplay or rather more serious conduct) and do not usually give rise tovicarious
liability. This group is best exemplified by two Scottish cases. In Wilson
v
Exel
UK
Ltd (trading as Exel) [2010] SLT 671 an employee, who supervised the defendant's health and safety policy, pulled Miss Wilson's ponytail making a ribald remark while he did so. This was little more than a prank but Miss Wilson sustained some injury. The Inner House held that the supervisor's actions were not connected with his employment; in pulling Miss Wilson's ponytail he was not doing anything in relation to his health and safety duties. The acts of the supervisor were a mere frolic for which the employer was not
vicariously
liable."
Vaickuviene
v
J Sainsbury Plc [2014] SC 147, in which Mr Romasov was killed by Mr McCulloch, a fellow employee in a J Sainsbury supermarket. The killer had expressed a dislike of immigrants. He picked up a kitchen knife from the kitchenware section of the supermarket and stabbed Mr Romasov in one of its isles. The Inner House held that the killer's conduct of harassment from 13 to 15 April "does not remedy the fact that there is no connection between the harassment and what McCulloch was employed to do. Rather, McCulloch's employment simply provided him with the opportunity to carry out his own personal campaign of harassment with tragic consequences" (paragraph 37).
D. DISCUSSION
vicarious
liability. It is not for this court to make its own findings of fact. Rather, I have to consider whether the Recorder erred in either or both of the judgmental exercises he undertook, by reference to the facts that he found.
(a) Negligence
volunteers,
they were staff members of CRUK. The event was held at the Institute's premises.
"33. In myview,
it is fair, just and reasonable to impose a duty of care on the management of a nightclub in respect of injuries caused by a third party, provided that the scope of the duty is appropriately set."
very
wide range of circumstances to which it has to be applied". She then went on, in the passage to which reference has already been made, to consider what might be the scope of the duty as regards
various
kinds of club. Even within the umbrella expression of "a nightclub", such requirements might
vary.
Accordingly, in one "where experience has shown that entrants quite often try to bring in offensive weapons", Smith LJ said that it "may be necessary to arrange for everyone to be searched on entry". In the case of a nightclub "where outbreaks of
violence
are not uncommon", liability might well attach "if a guest is injured in an outbreak of
violence
amongst guests and there is no one on hand to control the outbreak". This might mean that, in a case of "some establishments" arrangements would be needed "for security personnel to be present at all times within areas where people congregate".
"On the other hand, in a respectable members-only club, whereviolence
is
virtually
unheard of, no such arrangements would be necessary. The duty on management may be no higher than that staff be trained to look out for any sign of trouble and to alert security staff."
various
hypothetical circumstances. Smith LJ's use of the word "may" is important in this respect.
violence
was
virtually
unheard of, rather than the nightclub examples", the Recorder (at paragraph 115 of his judgment) was not acceding – nor required to accede – to the proposition that there had to be trained staff at the party, looking out for signs of trouble, which they would report to security staff.
variable.
volunteering
to help at the event); and (d) special training for those responsible for the provision of a risk assessment, covering all envisaged forms of inappropriate behaviour.
value
judgment about Robert Beilik's behaviour.
view
drives home the correctness of the Recorder's conclusion that the scope of the duty did not require that behaviour to be guarded against.
viewing
the CRUK 2012 Christmas party as akin to a nightclub where there is an ever-present risk of
violence.
This is incompatible with the carefully-graduated analysis adopted by the Court of Appeal in that case, which the Recorder adopted. On the Recorder's findings, there was adequate provision for security personnel. Their primary function was to control access to the laboratories but they were also available to be called upon by Mr Hadfield or one of the other
volunteer
organisers. According to the evidence of one of the security officers, the CRUK Christmas party was like a "family party". It would, I believe, be an unusual family that considered it necessary to hire trained security personnel to police one of its social gatherings.
(b)
Vicarious
liability
v
Ministry of Justice, concluded that Robert Beilik "was a sufficiently integral part of the business of CRUK to render CRUK potentially
vicariously
liable for his acts and omissions". There is no challenge by the respondent to that finding.
vicarious
liability are those articulated in Mohamud. They are:-
"(a) What functions or "field of activities" have been entrusted by the employer to the employee or, in everyday language, what was the nature of the job?
(b) Was there a "sufficient connection" between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice." (paragraph 44)
vicarious
liability were as follows:-
"155. Of relevance in the present case is that attendance at the party was far from compulsory. This was a party open to CRUK staff, as well as their guests. Entry was by ticket. Beilik was not required by CRUK to attend. More importantly, Beilik's presence at the party had nothing to do with the work which he undertook either for the Wolfson Centre or for CRUK. His act of lifting the claimant had nothing to do with his relationship with CRUK. It had nothing to do with hisresearch
work, either directly or indirectly. It was not, using the old Salmond test, a wrongful act authorised by the defendant or a wrongful method of performing an authorised act by the defendant. Nor, in my judgment, 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.
156. It is a matter of judgment to decide on which side of the line any case lies, in terms of being sufficiently closely connected with the assigned activities. The cases involving assault by employees of members of the public where they are employed to engage with the public will often fall on the side of liability. The acts often take place during or immediately following on from their employed duties. In those cases it may be said to be artificial to divorce the wrongful act from what the assailant was employed to do. In my judgment the present case falls on the other side of the line, where there is insufficient connection. In my judgment, his role with CRUK did nothing more than provide an opportunity for this unfortunate accident.
157. In my judgment, the present case is of the type intimated by the Court of Appeal in Grahamv
Commercial Body Works Ltd: rather than being something connected with his duties, he was rather engaged on a "frolic" of his own.
158. What was provided was an opportunity by being at the party. However, Beilik's actions on the night were not inextricably woven with the functions which he undertook at CRUK's premises.
159. In my judgment therefore the claimant has not established that by assigning to Beilik the functions and activities of avisiting
scientist, that the defendant created a risk of his committing the tort of assault or negligence in attempting to pick up, and then drop the claimant while she was on the dance floor.
160. In those circumstances, the case ofvicarious
liability on the part of the defendant for Beilik's actions fails."
view
that Robert Beilik's activities involved working in the laboratories at the Institute. This was under the supervision of CRUK. According to Mr Weir, however, the relevant field of activities of Robert Beilik on the evening of 7 December 2012 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 CRUK for its own benefit, since it stood to gain from the enhancement of its employees' morale.
v
Plenty had no actual authority to carry a child on the milk float.
Viewed
in this light, it is obvious Robert Beilik was not in anything like the same situation as the milkman in Rose
v
Plenty or the petrol kiosk employee in Mohamud. Both those individuals were at work, doing the job they were paid to do, when the relevant tort was committed by them. The same can also be said of the warden in Lister, whose abuse of the children in his care was inextricably linked with his job of looking after them.
vicarious
liability; nor, indeed, was the fact that the party had led on to the late-night drinking session. Rather, it was Mr Major's control of 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.
very
good illustration of my concerns. I have referred already to the record of oral evidence given by Mr Hadfield, when he was asked about the benefits for CRUK in holding the party. The complete exchange, as recorded by the respondent's advisers, is, however, illuminating:-
"The Christmas party
TG: The Christmas party was a work-related social event organised by CRUK for the benefit of employees and their guests?
JH: Yes.
TG: There were benefits for CRUK. It was a way of rewarding staff?
JH: No, it was not a reward for staff, it was staff led andvolunteer
organised, there would be a benefit in morale but this was not led by CRUK.
TG: They permit the party to occur and overall it looked to be a CRUK Christmas party?
JH: Only a Scrooge-like organisation would say "no".
TG: There were benefits to morale, break down barriers in the organisation, people can meet.
JH: Yes.
TG: It might help foster relationships.
JH: Possibly.
TG: It might foster belonging to an organisation.
JH: Possibly.
TG: Why might it not?
JH: A large number were coming in groups and they were already part of the organisation so not as much fostering of new relationships.
TG: Party – potential benefit.
JH: Yes."
volunteers,
organised the Christmas party. CRUK's motivation in doing so was not primarily, or even significantly, to derive a benefit for its operations. It was, in reality, responding to the expectation of its members of staff that this is what their employer does for them at Christmas.
view
that she deserves the court's sympathy. However, 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 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 this result through the imposition of
vicarious
liability.
vicariously
liable for what happened to the appellant at the Christmas party. Properly construed, there is nothing in the authorities that even points in this direction.
research
work at CRUK. This meant the Recorder was plainly correct to take the
view
that this field was not sufficiently connected with what happened at the party as to give rise to
vicarious
liability. Whilst I accept that there is a degree of compression in the Recorder's reasoning at this point of his judgment, it is of no material significance.
very high quality of their respective submissions.
Mr Justice Lane
April 2019