By Prof Paula Giliker, Professor of Comparative Law (University of Bristol Law School)
In January 2017, I published a blog on the decision of Judge Cotter QC in December 2016 in Bellman v Northampton Recruitment Ltd [2016] EWHC 3104 (QB). This was a High Court decision determining whether an employer would be vicariously liable when a company’s managing director punched a fellow employee during an informal drinking session after the company’s annual Christmas party. Tort lawyers will know that vicarious liability is a rule of strict liability, by which a person (usually an employer) is held strictly liable for the torts of his employees provided that they take place “in the course of employment”. Following the House of Lords’ decision in Lister v Hesley Hall [2001] UKHL 22, a tort is now deemed to be in the course of employment if it is so closely connected with the employment that it would be fair and just to hold the employer vicariously liable. In Bellman, the court was asked to apply the “close connection” test in the light of the Lord Toulson’s restatement of the test in Mohamud v Wm Morrison Supermarkets Plc [2016] UKSC 11 in March 2016. In that case, Lord Toulson had stated that, in applying the test for “close connection”, the court has to consider two matters:
- What are the functions or “field of activities” entrusted by the employer to the employee, or, in everyday language, what was the nature of his job?
- Is there a sufficient connection between the position in which the employee was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice?
Judge Cotter QC in 2016 ruled that the violent assault had not been closely connected to the managing director’s duties for the company. On 11 October 2018, a unanimous Court of Appeal allowed Bellman’s appeal and ruled in favour of vicarious liability: [2018] EWCA Civ 2214. This blog will consider the implications of this ruling.
The Facts
The case itself arises from an incident which took place during an “after party” following on from the 2011 Christmas party of Northampton Recruitment (NR). NR’s Managing Director (John Major) paid for taxis to take all those who wanted to continue drinking to the nearby Hilton Hotel, where some of the party were staying overnight at NR’s expense. The group included Clive Bellman (a sales manager) and his partner. Arriving some time before 1am, conversation later turned to work matters. A drunken work-related argument around 3am led to Major punching Bellman. Mr Bellman fell down, hitting his head on a marble floor, leading tragically to traumatic brain damage. (He was represented in the litigation by his partner as a protected party).
In terms of vicarious liability, Major was clearly an employee of the company – he was its managing director. The question for the High Court and Court of Appeal, therefore, was whether his violent act of battery was “closely connected to his employment” or now, in the light of Mohamud, could be said to be “within the field of activities entrusted to him such that there was a sufficient connection to his position to make it right to hold the employer liable under the principle of social justice”. Commentators such as Phillip Morgan ((2016) 75 CLJ 202) have expressed concern at the potential breadth of the Mohamud test. How would it work in practice?
The High Court ruling against Bellman
For Judge Cotter QC, the drunken outburst was not closely connected to Major’s duties as managing director. A distinction was drawn between actions occurring during the Christmas party itself – considered an incidental benefit of employment for which vicarious liability would have arisen – and any subsequent informal gathering. The judge refused to treat a “spontaneous post event drink at the hotel” as a seamless extension of the Christmas party. In so doing, as I noted earlier, the judge was attempting to limit the scope of the Mohamud test, albeit in the face of evidence that the assault had been triggered by a work-related dispute and that the taxis back to the hotel had been organised and paid for by Major on behalf of the company. Nevertheless, even while recognising the wide range and duration of duties undertaken by Major as MD, the judge ruled that he could not always be considered to be on duty. To rule otherwise would, the judge argued, have given rise to potential vicarious liability when fellow employees arranged to play a social round of golf and work-related matters led to a dispute. He therefore concluded that: “Standing back and considering matters broadly, what was taking place at 3 am at the hotel was a drunken discussion that arose after a personal choice to have yet further alcohol long after a works event had ended”: [para. 80]. Unsurprisingly given the gravity of Bellman’s injuries, the case was appealed.
The Court of Appeal ruling in favour of Bellman
The Court of Appeal unanimously allowed the appeal. Nevertheless, Irwin L.J. did admit that he did so with “some hesitation” and on the basis of “how unusual are these facts, and how limited will be the parallels to this case” (para. 37). In contrast, the leading judgment of Asplin L.J. is far more forthright, focusing fully on the Mohamud ruling and the breadth of the functions undertaken by Mr Major and the fact that the judge had found him to be the directing mind and will of NR. Facts such as the “round the clock” nature of NR’s business and that, as MD, maintenance of managerial authority would have been regarded as central to his role were deemed to undermine any depiction of Major as a “mere reveller”. By relying on a very broad view of Major’s field of activities, it became a far more straightforward exercise to find a close connection between Major’s activities and a fight about work in an unscheduled drinking session. To use the language of Asplin L.J.:
[Major] chose to wear his metaphorical managing director’s hat and to deliver a lecture to his subordinates. He was purporting to use his position and drove home his managerial authority, with which he had been entrusted, with the use of blows. Looked at objectively, he was purporting to exercise his authority over his subordinates and was not merely one of a group of drunken revellers whose conversation had turned to work. It seems to me that the attack arose out of a misuse of the position entrusted to Mr Major as managing director (para 25).
Asplin L.J. rejected the golf analogy. In such a case, all participants are equal and attend as casual friends and golfers. This was “a very long way” from a drinking session following a staff Christmas party where drinks continued to be paid for by the employer. Such a distinction might, however, appear less obvious to the nervous employee invited to play golf with his boss during the weekend who hopes to impress his superior with any eye to promotion. Ultimately, however, Asplin L.J. ruled that this was a Mohamud situation – it was Major’s job to take all the managerial decisions and enforce his authority with a wide remit to decide when and where he would work. The confrontation in the petrol station in Mohamud mirrored that in the Hilton lobby in Bellman.
Comment
How the court characterises the facts now seems a vital component of any vicarious liability decision. In Bellman, a close connection was more readily found by the Court of Appeal because it was willing to view the activities of a managing director, who was effectively the directing mind of the company, as extending to all work-related activities, even those taking place at 3am in the lobby of a hotel. We could try to dismiss Bellman as a “one off” – a dominant managing director in a relatively small company misusing his position. Yet there is more at stake here. As lawyers, we need to consider how broadly the Toulson test in Mohamud will be interpreted by the courts. Such a concern may be seen in Judge Cotter QC’s concluding remarks at first instance: “The rule [of vicarious liability] must have proper boundaries; it is not endless … Sympathy with [Mr Bellman’s] position cannot impact upon the proper application of principle” (paras 81-82).
In the post Mohamud world, however, matters are, it seems, to be considered broadly; imprecision is accepted as inevitable. To Asplin L.J. at least this is not a matter for concern (para 23). Arguably for Irwin L.J., this is more worrying. It seems doubtful, however, that his implicit plea for caution will be heard.[1] The Court of Appeal ruling in Bellman may be seen as a faithful application of Mohamud. The problem remains Mohamud itself and its potential, seen in this ruling, to allow ongoing extensions to the doctrine of vicarious liability without a clear limiting principle. Irwin L.J. ends by stating: “This case is emphatically not authority for the proposition that employers became insurers for violent or other tortious act acts by their employees”. What the courts need to identify more clearly is how this is to be prevented given the breadth of the Mohamud test. The Court of Appeal ruling in Bellman may not be a great surprise in the light of Mohamud, but it highlights once again that the runaway train of vicarious liability continues to thunder down the tracks.
[1] The third CA judge Moylan L.J. unhelpfully agreed with both Asplin and Irwin L.J.J. without comment.
This is a very informative article thanks for the great share.