Bellman v Northampton Recruitment Ltd
Claim brought against the Defendant company by an employee, who was left brain damaged after an altercation with a director of the company following a Xmas party, seeking damages on the basis that it was vicariously liable for the actions of the assailant. Claim dismissed.
After a Xmas party organised by the Defendant company, one of the directors of the company assaulted an employee who was left with brain damage. This altercation took place at 3am after some of the party goers decided to go on somewhere else when the official work party had finished. The employee who had been assaulted claimed that the Defendant company was vicariously liable for the actions of the director and claimed damages.
The claim was dismissed. The discussion between the two men had been, for a significant time, on social or sporting topics. That it then veered into a discussion about work could not provide a sufficient connection to support a finding of vicarious liability against the company that employed them. It was, or without any doubt became, an entirely independent, voluntary, and discreet early hours drinking session of a very different nature to the Xmas party and unconnected with the Defendant's business.
Case No: HQ14P04224
Neutral Citation Number:  EWHC 3104 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 1 December 2016
HIS HONOUR JUDGE COTTER QC
(Sitting as a High Court Judge)
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CLIVE BELLMAN (A protected party by his litigation friend Nick Bellman) (Claimant)
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NORTHAMPTON RECRUITMENT LIMITED (Defendant)
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David Sanderson (instructed by Slater & Gordon) for the Claimant
Derek O'Sullivan QC (instructed by Kennedys) for the Defendant
Hearing dates: 23, 24 and 25 November 2016
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His Honour Judge Cotter QC :
- In the early hours of 17th December 2011 when a group of people were drinking in the hotel lobby at Hilton Hotel in Watering Lane, Collingtree, Northants, Mr John Major, a director and shareholder of the Defendant company assaulted the Claimant, Mr Bellman, punching him twice and knocking him to the floor in the course of which his head hit the marble floor. As a result of the assault Mr Bellman suffered brain damage.
- By this claim, brought against the Defendant company, Mr Bellman seeks damages on the basis that it was vicariously liable for the actions of Mr Major. Mr Major was no longer a Defendant by the time of the hearing as the view was taken by those advising Mr Bellman that he could not satisfy any judgment. He did not attend or give evidence.
- The fact of the assault is not in dispute in this action. A flawed decision was taken not to proceed with the criminal charges laid against Mr Major and a complaint in relation to that decision has been upheld.
- This hearing is limited to the issue of liability.
- I shall first set out the matters that are not in dispute.
- Mr Bellman was born on 24 April 1956 so was aged 55 the time of the assault.
- John Major, his wife Beverley Major and Michael Geoghegan were directors and shareholders of the Defendant, a company running franchise offices of Drivers Direct, a national HGV driver recruitment organisation which placed commercial drivers with firms in need of temporary staff. John Major was the managing director. Mrs Major worked in the office but Mr Geoghegan appears to have played no part in the day to day operations of the business. The Defendant initially had offices in Leicester, Northampton and Nuneaton, but at some stage during 2011 the Leicester office closed.
- In about October 2010, John Major offered Mr Bellman a job as a sales manager for the Defendant, and he took up that role in November 2010. His responsibilities involved the recruitment of drivers to the agency and placing them with clients of the agency. He was paid a daily rate of £80 and a commission based on the performance of the Defendant as a whole.
- Mr Bellman and Mr Major had been friends since childhood. Mr Major is approximately three years younger than Mr Bellman. They attended primary and secondary schools together developed a strong friendship. When Mr Major first got married Mr Bellman and his wife took in the newlyweds as lodgers for two years.
- At the time the Mr Bellman started his employment there were approximately eight members of staff although this number subsequently grew to eleven (including Mr and Mrs Major) working in two offices: Nuneaton and Northampton. A Mr Steve Kelly, was then recruited to work at the Northampton Office. As Mr Bellman recalled
"one day, all of a sudden and without any warning, Steve Kelly started working for Northampton recruitment Ltd. Word got around that he was being paid significantly more money than anyone else in the firm a number of us could not understand why that was the case. Steve Kelly was based the Northampton office. As I recall he started to work for the company approximately a month or so before Christmas party"
- The Defendant's Christmas party took place at the Collingtree Golf Club in Northamptonshire. All members of staff (some drivers were technically employees, but would not have been considered as such by the majority of the staff), were invited, as were their partners.
- In all 24 people attended. All members of staff were there, save for a gentleman called Joel, and each brought an additional partner, save for Mr and Mrs Major. Mr Major invited two guests: Mr Gethin Roberts, the owner of Drivers' Direct and Mr Andrew Blakesley, both of whom brought partners. The final two guests were Mr Major's two young children.
- Other parties were also taking place at the golf club on the same evening.
- The party was an ordinary or usual work Christmas party of the type no doubted dreaded by some and an annual highlight for others. Not surprisingly alcohol was consumed by many attending.
- After the party at the Golf Club ended just over half of the guests went onto to the Hilton Hotel. Those that did not were Mrs Major, her two young children, Mr Ben Major and his partner and a lady called Val from accounts and her partner. It is not clear whether or not Steve Kelly and his partner initially went on. Thus between thirteen and fifteen of the 24 party guests went on to the Hilton, including either five or six or the Defendant's eleven staff. Most were staying at the Hotel, others such as Mr Major and Mr Bellman and his partner Ms Thomas were not. This was not a pre-planned extension to the party.
- At 3 am or so in an unprovoked attack Mr Major assaulted Mr Bellman. His conduct was shameful and no doubt in part fuelled by alcohol. Mr Bellman was punched twice. On the second occasion he was knocked to the floor, stuck his head and was rendered unconscious with blood coming from his ears. One employee present, Mr Hancocks, feared that he was dead. He was taken to A&E where he was confused and uncooperative with a significantly impaired conscious level (CGS of 8/15). An initial CT scan revealed a skull fracture and extradural bleeding. He was taken to the neurosurgical service at the John Radcliffe Hospital in Oxford where a further scan revealed a left frontal lobe contusion with residual subdural and subarachnoid haemorrhage. He had also suffered a fracture of the right temporal bone and the left orbital floor. In order to relieve intracranial pressure he underwent a decompressive craniectomy and following that a further operation as intracranial pressure began to rise.
- The brain injury sequalae include headaches, anosmia, fatigue, low mood, deficits in verbal reasoning, verbal memory and word finding, speech and language impairment. He is a protected party and lacks the capacity to litigate or manage his affairs. He is unlikely to return to any paid employment. There is a neuropsychological report from Dr Brooks following an examination on 20 January 2015 which sets out that Mr Bellman suffered "very severe traumatic brain injury with subsequent cognitive, emotional and behavioural consequences". The opinion is that his thinking is simplistic and concrete and he believes there are real constraints on decision-making in relation to litigation and the management of money concluding he currently lacks capacity.
- Although the fact of the assault was not in issue some matters of fact relevant to the issue of vicarious liability remained in dispute.
- A useful starting point is the CCTV footage which gives valuable assistance as to exactly what happened before the second blow which caused the injury.
- Mr Bellman could provide no useful evidence concerning the circumstances surrounding the assault due to his injuries. However Susan Thomas gave evidence on his behalf and reliance was placed upon the agreed statement of Mr Steven Tomlin.
- The Defendant called James Harman and Hayley Thompson-Pettitt. They are both now living in Sydney, Australia and their evidence was given by video-link.
- Mr Major was not called. In a police interview on 17 December 2011 he stated that an argument developed because of Mr Bellman's
"continual need or want to be in control of the Nuneaton office… as it were and I just don't believe at this point he would be ready for that".
- He explained that at the time he struck Mr Bellman
"I believed he was in my face and so I lashed out to keep him away… I felt I was protecting myself. He went down. He got back up again and came towards me to people in between us as well. I hit him again because he was coming forward at that point he fell and hit his head."
He also stated that Mr Bellman was coming towards him with a look on his face, a staring look and that he was "moving towards me". That he thought Mr Bellman was going to hit him and he told the officer that he believed he was acting in self defence.
- This version of events is plainly inconsistent with the CCTV coverage. I reject the notion of either provocation or self-defence with no hesitation. It was brutal assault comprising of two phases separated by Mr Major being removed and held back by others, breaking free and returning to strike again at a time when Mr Bellman, rather than being aggressive, was pleading with him to see sense.
- Not surprisingly Mr Major was charged with assault. On 15 May 2012 Mr Bellman gave a statement setting out that he could not remember anything about the incident as he had no memory of the events before until waking up in hospital. He stated that he been friends with Mr Major for forty years and was sure that it did not mean to cause him harm and could not see the point in prosecuting him as he did not want to ruin his life. I do not know what medical evidence was available at this time as to the effects of the accident upon Mr Bellman. There was certainly one statement from Dr Wade that stated that he had suffered significant brain damage with resultant cognitive dysfunction and that he would never function at his pre-injury level again. Given the totality of the evidence before me it seems highly likely that he would have presented as a man who had a degree of damage resulting from the accident. It would be reasonable to expect this to have been taken into account when a decision was taken to proceed with the prosecution. This was acknowledged by the Deputy Chief Crown prosecutor in the letter of 12 July 2013. His view was that more should have been done to ascertain the integrity of Mr Bellman's reluctance to support the prosecution. Although I have had no direct evidence on the reason taken by the CPS not to offer any evidence, and accordingly there is a proper limit to any comment, I would have thought that although Mr Bellman was a victim, given his residual disability, inability to recollect events and the wider public interest in prosecution for such an assault, that his further witness statement should have had very limited weight in any evaluation of the merits of proceeding. It may well be that the most relevant factor taken into account was a further witness statement from Mr Harman that appeared to provide some support to Mr Major's claim that he acted in self defence. I shall return to that statement in due course. However the evidence of Mr Hancocks, Mr Hughes and significantly the CCTV provided a more than adequate prime facie case. Mr Price a deputy chief crown prosecutor indicated in a letter of 2 October 2013 that the decision to end the prosecution was wrong and that it remained a viable prosecution which ought to have proceeded.
- I make these observations given that there are disputes of fact that remain to be determined and to make it clear that the decision not to proceed with the prosecution case was not as a result of any adequate analysis leading to understandable concern that any evidence, and specifically that of Mr Hancocks. Ms Thomas or Mr Bellman, would not be accepted.
- Ms Thomas and Mr Hancocks who gave evidence before me, have given consistent versions of events throughout and I found them to be honest, frank and compelling witnesses. Ms Thompson-Pettit was of limited assistance as to the assault. However I view the evidence of Mr Harman in a very different light.
- In a witness statement taken by the police on 17th December 2011 Hr Harman stated
"as we walked from the entrance to the lounge area where our group was sitting, I saw was (sic) John sort of lurch forward towards Clive. I've got my back to Clive, but I instinctively jumped in between the two of them and walked John backwards and away from the situation. John wasn't very happy about this and was clearly wound up about whatever Clive had said…. Clive was on the floor. He looked unconscious and had blood coming from his ear………. The whole incident happened so quickly, it was over in seconds. It was well lit inside the hotel and I was touching distance away from both men… I saw John lurch forwards once towards Clive, but I did not see him make contact with him".
- Of course at the time of the taking of this statement Mr Harman was in the unenviable position of describing the actions of a person who was his employer and friend. Given the content of the CCTV and what can clearly be seen to be the considerable efforts he took to prevent Mr Major from returning to assault Mr Bellman (which ultimately failed) it is surprising that he says he did not see either blow landed. However, concern about his recollection deepens considerably when one considers his further witness statement of 15th July 2012, given to Mr Major's solicitors. He states that his police statement had been given to him by Mr Major and that he wanted to correct certain aspects. In this statement he denied using the word "lurch", stated that he did not see Mr Bellman go to ground on the first occasion and continued
"I saw John pulling himself back at it may well be that he had gone forward but the movement I saw was him withdrawing back. I can only therefore infer this was when John had the first contact with Clive…. I then started to walk John backwards with me in between him and Clive. Tom came over as well and try to calm the situation down. I was walking John backwards and I could feel the presence of Clive behind me. Although I didn't see him, the last thing I remember before I was pushing John backwards was Clive being there and me being in between them. I felt he was right behind me going towards John. I was effectively pushing John away from Clive and I felt that Clive was advancing towards John, although I don't know exactly how close he was. John is much bigger than me. I was able to get in between the two of them. I wasn't physically restraining John and I did not see a punch….."
- It is impossible to reconcile this statement with what is shown on the CCTV. Mr Harman can clearly be seen pushing Mr Major back and away from Mr Bellman. He struggles to hold onto Mr Major who breaks free makes a determined charge back some distance towards Mr Bellman who has not proceeded towards Mr Major. The coverage completely undermines the argument of self defence. When considered in context Mr Harman's second witness statement reads as a deliberate attempt to downplay Mr Major's involvement, to blame Mr Bellman for advancing towards Mr Major and to support self defence. It also continues to state that Mr Harman did not see the punches thrown, yet his proximity makes this extremely unlikely.
- Mr Harman who remains a friend of Mr Major was clearly going to be cross-examined upon his statements, which contained the usual declaration, so at the outset of his evidence I gave him a notice that he could decline to answer any question on the grounds of the right against self-incrimination. In due course he did refuse to answer some of the questions posed by Mr Sanderson.
- I carefully considered what he told me, however, I regret to say I believe, possibly out of misplaced loyalty, he has intentionally provided what is clearly a less than accurate recollection of events. It is even more regrettable that this appears to have played a part in the decision not to continue with the prosecution.
- I bear in mind that the most recent witness statement was compiled for a different reason and therefore with the emphasis on different aspects of what occurred. Nevertheless, I find that the material elements are unreliable. By way of pertinent example in his police statement Mr Harman stated that after the party "we got a lift back to the hotel.." whereas in the most recent statement he sets out that " I am pretty sure I paid for the taxi for Hayley, John and I back to the Hilton with my own money". Given my finding as to his second witness statement and the further changes in the most recent statement, I can place little reliance upon any evidence of Mr Harman, and specifically where it is at variance to that of Mr Hancocks or Ms Thomas.
- I now turn to my specific findings.
- I accept the evidence of Ms Thomas that it was early evening before she went to the party with Mr Bellman. She stated
"Clive was somewhat sullen and subdued. He explained to me that he and various colleagues had been having discussions at work during the course of the proceeding days about a new colleague by the name of Steve Kelly. Based on what Clive explained to me at the time my understanding is that Steve Kelly had been employed by Mr Major fairly recently and that Mr Major treated him as though he was somewhat more important and of more value than the others. He put him on a pedestal so to speak. Clive also seemed to think that Steve Kelly was being paid more than anyone else".
- She also recalled that she was not particularly looking forward to the Christmas party as she had attended a number of other work related functions of the Defendant over the preceding year found that there was often a lot of small talk and work related discussions which she found boring. Ms Thomas stated that it was her understanding that Mr Major or the firm were
"going to pay for all of us to get taxis home ,,, [and] … that all expenses from the evening were to be met by Mr Major and/or his company".
- Mr Hancocks also thought that the taxis to the hotel were arranged and paid for by Mr Major.
- Following the journey from the Golf Club, thirteen to fifteen people arrived at the Hilton Hotel between 12.30 and 1.00 am. Most of the party then sat in the Lobby. After a while Mr Roberts, Mr Blakesley and their partners went to bed and Ms Thomas went to sleep on a chair. Mr Hancocks' partner drank tea but the remainder of the residual group continued to drink alcohol. Somewhat remarkably given that he had a beer before going to the Golf Club and drank a no doubt significant quantity of beer during the party, Mr Hancocks had four or five pints of Boddingtons and two Jack Daniels when back at the hotel. There is no specific evidence about what others drank, save that drink "kept coming". Mr Hancocks paid for no drinks but Mr Hughes used his room card to pay for at least one round of drinks. It is a reasonable inference from the available evidence that the Defendant, acting through Mr Major, paid or would have paid when those who were resident checked out, or would have reimbursed at a later stage, for at least part of the alcohol consumed.
- For about 45 minutes after arriving at the Hilton there was general chit chat between those present on a variety of topics. Then at a time approaching 2.00am the conversation turned to work, including plans for the company for the following year. Mr Major continued to talk about company business from that point until his assault on the Claimant.
- At about 2.45 am a group went outside consisting of Mr Major, Mr Bellman, Mr Harman, Mr Hancocks, his partner and Mr Hughes. Mr Major, Mr Harman and Mr Bellman stood together and discussed company business. During the course of that conversation Mr Bellman brought up the subject of Mr Kelly's recent appointment. This proved to be a controversial topic and Mr Major became annoyed at being questioned about his appointment and "stormed" off or at least pointedly left and returned inside the lobby.
- Once back in lobby Mr Major "summoned" the remaining company employees and began to lecture them on how he owned the company, that he was in charge and that he would do what he wanted to do; that the decisions were his to take and that he paid their wages. This was something that he had done before on other occasions. When, during the course of this "rant" (as Mr Hancocks described it) Mr Hancocks said something that Mr Major clearly did not like and he said something to the effect of "… will you listen …" and moved towards Mr Hancocks. It appears that the now probably significantly inebriated Mr Major was in the process of losing his temper.
- Further mention was made of Mr Kelly and, backing up Mr Major, Mr Harman supported his recruitment and deployment. By this time Mr Major was swearing and Mr Tomlin (the night porter whose evidence is agreed) heard him say "Fucking Steven Kelly is in the right fucking place". The Claimant, in a non- aggressive manner, challenged this stating that it would be better if he were based at Nuneaton. Mr Major, moved towards Mr Bellman stating "I fucking make the decisions in this company it's my business. If I want him based in Northampton he will be fucking based there" and punched Mr Bellman, who fell down.
- Mr Bellman got back up, bleeding from his left eye area, holding out his hands in a gesture of surrender and said "John, what are you doing? Don't do this". However Mr Major appears to have lost all control by this stage. Mr Hughes and Mr Harman pushed John Major back and tried to hold him, but, as the CCTV coverage shows, he broke free, ran back over and hit the Claimant again with a sickening blow with his right fist, knocked him out such that he fell straight back, hitting his head on the ground.
- As Ms Thomas sets out in her witness statement Mr Major sought to avoid prosecution.
- I now turn to the relevant legal principles. Briefly stated, an employer is vicariously liable for a tort committed by its employee if that employee was acting in the course or scope of his employment. The underpinnings of vicarious liability relate to issues of policy and the decision of the court involves a value judgment.
- However the boundaries of this form of strict liability have often proved difficult to identify. I have been greatly assisted by the submissions of both Counsel, but in part they serve only to highlight the continuing difficulties with the issue, notwithstanding that it has recently been considered by the Supreme Court in the case of Mohamud-v-WM Morrison Supermarkets PLC  AC 677 and before that decision, by the House of Lords in Lister & others –v-Helsey Hall  UKHL 22 and Dubai Aluminium Co.Ltd –v-Salaam & others  2 AC 366.
- It remains necessary to start by briefly considering the underlying rationale for this species of strict liability.
- In Mohamud Lord Touslon set out a detained analysis of the development of vicarious liability. He noted that Chief Justice Holt was particularly influential in the development of the principal in the 17th century and stated that the principles of social justice underpinning the modern doctrine of vicarious liability are said to date back to his judgments. In Turberville v Stamp (1698) 1 Ld Raym 264 he stated
"if my servant doth anything prejudicial to another, it shall bind me when he may be presumed that he acts by my authority, being about my business".
And in Sir Robert Wayland's case  3 Salk 234
"the master at his peril ought to take care what servant he employs; and it is more reasonable that he should suffer for the cheats of his servant than strangers and tradesmen".
- However these straightforward principles were not uniformly adopted. As Lord Hobhouse pointed out in Lister, Glanville Williams wrote in 1957 that vicarious liability is "the creation of many Judges who have had different ideas of its justification or social policy, or no idea at all.".
- In Rose –v-Plenty  1 WLR 141 Scarman LJ stated
"but basically as I understand it, the employer is made vicariously liable the tort of the employee not because the plaintiff is an invitee, nor because of the authority possessed by the servant, but because it is a case in which the employer, having put matters into motion, should be liable if the motion that he has originated leads to damage to another"
- In the Canadian case Bazley-v-Curry  2 SCR Mc Laughlin J stated
"the policy purposes underlying the imposition of vicarious liability on employers are served only where the wrong is so connected with the employment that it can be said that the employer has introduced the risk of the wrong (and is thereby fairly and usefully charged with its management and minimisation)"
- Fleming in the law of Torts 9th Edition observed that the formula represented
"a compromise between two conflicting policies: on the one end, the social interest in furnishing an innocent tort victim with recourse against a financially responsible defendant; on the other a hesitation to foist any undue burden on business enterprise".
- In Lister, the Claimants were resident in a boarding house attached to a school owned and managed by Defendant. The warden of the boarding house without the Defendant's knowledge systematically sexually abused the claimants. The Court held having regard to the circumstances of his employment, including the close contact with the pupils and inherent risks that it involved, that there was a sufficient connection between the work that he had been employed to do and the acts of abuse that he had committed for those acts to be regarded as having been committed within scope of his employment. Lord Millett stated that vicarious liability is best seen as a "loss-distribution device". He referred to Fleming and also to Atiyah who wrote to the same affect and said of their work (at paragrahs 65/66 )
"They are based on the more general idea that a person who employs another for his own ends inevitably creates a risk that the employee will commit a legal wrong. If the employer's objectives cannot be achieved without a serious risk of the employee committing the kind of wrong which he has in fact committed, the employer ought not to be liable. The fact that his employment gave the employee the opportunity to commit the wrong is not enough to make the employer liable. He is liable only if the risk is one which experience shows is inherent in the nature of the business.
While this proposition has never, so far as I am aware, been adopted in so many words as a test of vicarious liability in any of the decided cases, it does I think form the unspoken rationale of the principle that the employer's liability is confined to torts committed by an employee in the course of his employment":
And at paragraph 70
"What is critical is that attention should be directed to the closeness of the connection between the employee's duties and his wrongdoing..."
- In Dubai Aluminium Lord Nicholls stated at para 21,
"Whether an act or omission was done in the ordinary course of a firm's business cannot be decided simply by considering whether the partner was authorised by his co-partners to do the very act he did. The reason for this lies in the legal policy underlying vicarious liability. The underlying legal policy is based on the recognition that carrying on a business enterprise necessarily involves risks to others. It involves the risks that others will be harmed by wrongful acts committed by agents through whom the business is carried on. When these risks ripen into loss, it is just that the business should be responsible for compensating the person who has been wronged.
 This policy reason dictates that liability for agents should not be strictly confined to acts done with the employer's authority. Negligence it can be expected to occur from time to time. Everyone makes mistakes at times. Additionally it is a fact of life, and therefore to be expected by those who carry on business, that sometimes their agents may exceed the bounds of their authority or even defy express instructions. It is fair to allocate risk of losses thus arising to the businesses rather than leave those wronged with the sole remedy, of doubtful value, against individual employee who committed the wrong. To this end, law has given the concept of "ordinary course of employment" an extended scope."
- In Dubai Lord Millett reiterated what he had previously stated in Lister at para 107
"Vicarious liability is a loss distribution device based on grounds of social and economic policy. Its rationale limits the employer's liability to conduct occurring in the course of the employee's employment. "The master ought to be liable for all those torts which can fairly be regarded as reasonably incidental risks to the type of business he carries on": see Atiyah, Vicarious Liability (1967) p171, Lister v Helsey Hall  1 Act 215.
- In Various Claimants –v- Catholic Child Welfare Society  2 AC at 1 at 15; Lord Philips said
"the policy objective underlying vicarious liability is to ensure, in so far as it is fair, just and reasonable, that liability for tortious wrongs is borne by a defendant with the means to compensate the victim. Such Defendants can be usually expected to insure against the risk of such liability, so that this risk is more widely spread. It is for the courts to identify policy reasons why it is fair, just and reasonable to impose vicarious liability and to lay down the criteria that must be shown to establish vicarious liability. Where the criteria are satisfied the policy reasons for imposing liability should apply. As Lord Hobhouse of Woodborough pointed out in the Lister case, the policy reasons are not the same as the criteria. One cannot however consider one without the other and the two sometimes overlap "
- Having set out the policy reasons underpinning vicarious liability I now turn to the test or criteria to be applied.
- The close connection test was first formulated by the House of Lords in Lister and then applied in Dubai in a case of commercial fraud. Lord Nicholls posed the question that if authority for the acts in question was not the touchtone what was and he answered it as follows ;
"the wrongful conduct must be so closely connected with act the partner or employee was authorised to do that, the purposes of the liability of the firm or employer to third parties, wrongful conduct may fairly and properly be regarded as done by the partner whilst acting in the ordinary course of the firm's business or the employee's employment"
- He acknowledged that the close connection test affords no guidance on the type of degree of connection which will normally be regarded as sufficiently close to prompt the legal conclusion that the risk of the wrongful act occurring, and any loss flowing from that wrongful act, should fall on the employer rather than the third party who was wronged. He noted that the lack of precision was inevitable given the infinite range of circumstances where the issue arises and stated that the crucial feature or features either producing or negativing vicarious liability varies very widely from one type of case to the next. Essentially the court should make an evaluative judgement in each case, having regard to all the circumstances and, importantly, having regard to the assistance provided by previous court decisions, noting that in this field that latter form of assistance is particularly valuable.
- In Mohamud the Claimant argued that the law must take proper account of the social shift towards an extended concept of corporate responsibility and that organisations must take responsibility for the acts of their representatives. It was argued that the test should be refined by asking whether an authorised representative of the principal has committed a wrong in circumstances where the reasonable observer would consider the wrongdoer (leaving aside the heinousness of his behaviour) to be acting in a representative capacity. However the Supreme Court, through Lord Toulson, declined an invitation to broaden the traditional test for vicarious liability and restated the test as follows
- In the simplest terms, the court has to consider two matters. 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 Ilkiw v Samuels  1 WLR 991, 10041 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.
- 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. Lloyd v 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.
- Lord Touslon also recognised that the test is imprecise and requires the court to make an evaluative judgement in each case having regard to the circumstances. He noted that in Lister the court was mindful of the risk of overconcentration on a particular form of terminology,
".. And there is a similar risk in attempting to over refine, or lay down a list of criteria for determining, what precisely amounts to a sufficiently close connection to make it just for the employer to be held vicariously liable. Simplification of the essence is more desirable."
- Lord Dyson MR stated that
"to search for certainty and precision in vicarious liability is to undertake a quest for a chimaera. Many aspects of the law of torts are inherently imprecise."
- Given the lack of certainty or precision in the test, previous cases, although all turning on different facts, do provide greater assistance than in other areas of law. I have been provided with an extensive review of authority by Counsel and in particular have found the following to be of assistance ; Faulkner-v Chief Adjudication Officer  PIQR P244, Fennelly-v-Connex South Eastern Limited  IRLR 390, Cercato-Gouveia –v-Kyprianou  EWCA Civ 1887 ; Bernard –v-AG of Jamacia  Privy Council ; Graham-v-Commercial Bodyworks Limited  ICR 665 ; Mattis –v-Pollock  1WLR 2158 ; Livesey –v-Parker Merchanting UKEAT /0755/03/DA; Wilson-v-Excel  CSIH 35 Weddall-v-Barchester  IRLR 307 : Fletcher-v-Chancery Supplies  EWCA Civ 112. Because each case turned upon its own facts and the overarching principles have been set out by the Supreme Court, I will not set out the details of these cases within this judgment. Rather I shall set out the relevant principles in relation to assaults committed by employee which I take from the all authorities to which I have been referred. They are as follows:
i) An employer is not liable for an assault by his employee merely because it occurred during working hours (see e.g. Wilson-v Excel and Graham –v-Commercial Bodyworks) and not axiomatically free from liability because it occurred outside normal working hours and/or the workplace (see e.g. Bernard –v-AG of Jamacia; Mattis –v-Pollock ).
ii) As set out in Mohamud there are two questions to be considered
a) Firstly looking at matters in the round or broadly, what were the functions or what was the field of activities entrusted by the employer to the relevant employee i.e. what was the nature of his job? This should not entail **a dissection of the employment into its component activities, rather a holistic approach and answering the question as a jury would;
b) Secondly, was 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? Again a broad approach should be taken and it is necessary to consider not only the purpose and nature the act but also the context and circumstances in which it occurred.
iii) The test is inevitably imprecise given the nature of the issues. The authorities have not sought to give detailed guidance as to the nature of the connection as the assessment is peculiarly fact sensitive. So whilst consideration of past cases shows that certain specific factors have been considered central, if not determinative, given particular circumstances e.g. the material increase in risk in putting a teacher in close proximity with a vulnerable pupil, it remains very much a fact specific evaluation having regard to the full circumstances of the employment and the tort.
iv) Whilst consideration of the time and place at which the relevant act occurred will always be relevant, it may not be conclusive. There must be some greater connection than the mere opportunity to commit the act provided by being in a certain place at a certain time.
v) The policy underlying this form of strict liability should always be borne firmly and closely in mind.
- Bearing these principles in mind I turn to their application to the facts of the present case as I have found them to be.
- I start with a broad assessment of what functions or fields of activity were entrusted by the Defendant to Mr Major. He was the managing director and clearly saw himself as in overall charge of all aspects of the Defendant's undertaking. The other directors were his wife and an individual who, as far as I can determine, seems to have played little part in the day to day running of the Defendant. Certainly Mr Major was a director authorised to act on behalf of the company with a wide remit. Things were done "his way", subject only to the limitations on the Defendant of the franchise agreement. It is artificial to categorise the position as either a job with set hours or one whereby the Defendant had control qua employee over Mr Major as regards his method of carrying out his work, as in effect he was not only the managing director but also the directing mind and will of this small company (which ran a round-the-clock driving operation, such that there was always an employee of the Defendant company on call). I suspect that for much of his week Mr Major was either directly working on company business or available for consultation or direction. The result is that much of what Mr Major did during the average working day was directly or indirectly connected to the Defendant and could be considered within his role as the managing director of this relatively small company.
- I also have no doubt that, as with many managers in the modern world, he viewed part of his job to be the motivation of employees. Part of motivation is reward and, apart from salary, many employees receive incidental benefits, such as a Christmas party at the company's expense. Mr Major was able to take decisions as to company expenditure and no doubt at his direction the Christmas party was arranged and paid for by the Defendant, as were the drinks (subject to a financial limit behind the bar), the hotel accommodation and the taxis to and from the venue. In my judgment Mr Major would have seen it as part of his job to oversee the smooth running of the Christmas party. He was not just an attendee.
- He would also have seen the maintenance of managerial authority as a central part of his role.
- However 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.
- Turning to the connection between Mr Major's employment and his wrongful conduct I consider the following factors to have particular importance.
- Firstly, the assault was committed after and not during an organised work social event. I accept that there was an expectation or obligation that employees would attend the Christmas party, unless there was a good excuse. Whilst not a contractual obligation, and refusal or failure to attend would not be a disciplinary matter, I think that in such a small enterprise it would have attracted adverse comment. In this regard I regard it as far more closely connected or incidental to their employment than ancillary activities such as playing for an employee based sports team.
- However, the organised event at the Golf Club had ended and as result the expectation or obligation on any employee to participate had ended. In effect a line could be drawn under the evening's event and not surprisingly some employees went home. There was not only a temporal but a substantive difference between the Christmas party at the Golf Club and the drinks at the Hilton Hotel. What followed on after the party was what Mr O'Sullivan Q.C. accurately described as an "impromptu drink". The taxis back to the hotel were organised and probably paid for by the Defendant. However as the expectation was that the company would pick up the tab for taxis home at the end of the evening, this was no more than part and parcel of the obligations arising from the Christmas party as guests at the hotel would have to return there in any event.
- In my judgment the spontaneous post event drink at the hotel, a fortiori the gathering that consisted of the remaining members of the group (which included partners) who were, remarkably, still drinking at 3.00 a.m. (four people staying at the hotel having gone to bed) cannot be seen as a seamless extension of the Christmas party as Mr Sanderson suggests. In substance what remained were hotel guests, some being employees of the Defendant some not, having a very late drink with some visitors.
- Secondly, there must be a limit to the effect of a discussion being about work related issues. Upon return to the hotel for a significant period of time the conversation was about social topics and not about work. Only after that and as the group narrowed did the conversation turn to work matters. What then followed included Mr Major "ranting" about work and a challenge to one of his managerial decisions that was the trigger for the assault. It was at the heart of Mr Sanderson's submission that the assault was in the course of and closely connected to employment, that the conversation had turned to work topics and that Mr Major was trying to assert his authority. Mr Sanderson placed much reliance upon what was said by Mr Major immediately before the assault.
- As I explained during submissions, at first blush I saw some tension between the view of the Supreme Court in Mohamud that Warren was correctly decided and its own conclusion on the facts of the case before it. Both concerned assaults by employees who were on duty in petrol stations at the time of disagreements with, and then attacks upon, customers.
- In line with his submissions as to the importance of the conversation at the material time in the present case Mr Sanderson submitted that reconciliation lay in what was said by the employees in each of the cases at, or immediately before, the time of assault. In Mohamud Lord Toulson in the Supreme Court, unlike Treacey LJ in the Court of Appeal, specifically referred to the fact that the employee, Mr Khan, had instructed the Claimant, in threatening words to never come back before hitting him. Such an instruction Mr Sanderson submitted was generically clearly with his remit, whereas in Warren the conversation upon the Claimant's return to the petrol station only concerned whether an offence had been committed and his intended complaint to the employee's superiors and as such was not part of the employee's duties. However I do not accept that, without more, what was said by each employee was the main rationale of the court as the distinction between the cases. Rather in my view the, or at least a, major difference identified by Lord Touslon was that Mr Warren had left the petrol station. i.e. the exchange had ended, and then returned at a later stage with a Police Officer to pursue a complaint arising out of the performance of the employee of his duties. Hilbery J had stated in Warren
"So far as the Plaintiff and Beaumont were concerned the plaintiff's business with the Defendants was at an end. He had paid his money and handed over the coupons. He had actually gone off thereafter on a matter which concerned him personally in his relations with Beaumont-that is he had gone for the police and made a compliant to them about Beaumont's conduct towards him and when the policeman said he was not taking any action because he did not consider it a police matter, the Plaintiff actually turned to go to his car to leave."
He described the subsequent assault as an act of personal retribution for something that would affect him personally and had "no connection whatsoever with the discharge of his duty."
- In Mohamud, although Mr Khan left his position behind the counter and proceeded onto the forecourt, and Mr Mohamud had returned to his car and switched on the engine, what happened was viewed as "an unbroken sequence of events" or a "seamless episode" starting with the foulmouthed response to a request which was "within the field of activities" assigned to him and continuing to when he gave the instruction not to return. Lord Toulson stated that Warren was correctly decided as
"at the time of the incident the relationship between the plaintiff and the attendant had changed from that of customer and representative of the petrol company to that of a person making a complaint to the police and the subject of the complaint"
by which I take him to refer to the temporal gap and the change in nature of the subject matter making it, in effect, a different interchange to that which had previously taken place. So unlike the work related exchange which had ceased in Warren, it never ceased on the facts in Mohammud.
- Whilst the actual words spoken were clearly important, I certainly do not take Lord Toulson's judgment as setting out or supporting a proposition that merely raising something that relates to duties at work has the effect of itself of changing a conversation or interaction between fellow workers into something in the course of employment, regardless of the surrounding circumstances. Indeed I see considerable difficulties with Mr Sanderson's argument that so much weight should be attached to what was being discussed, rather than the time and place of the discussion. Taken to its extreme it could lead to results that would clearly not be consistent with the policy underpinning vicarious liability. I draw an example from the fact that Mr Major and Mr Bellman both played golf (per Mr Hancocks). If they had arranged to play a social round of golf with some others and when they reached the 12th hole the conversation between them turned to work, with an assault occurring on the 13th hole as Mr Major viewed his authority as being under challenge, I cannot see that the wide ambit of his duties in the company and the fact that the discussion has turned to work as somehow transforming what was clearly a recreational activity into something properly viewed as in the course of employment, such that there would be sufficient connection to make it right that the company be held liable for the blow. As Lord Justice Pill noted in Weddall-v-Barchester, the possibility of friction is inherent in any employment relationship and I would extend that to any discussion about contentious issues within employment whenever and wherever they take place. If the mere fact of a discussion being between employees and about work were enough for liability to arise, it would mean that such a company's potential liability would become so wide as to be potentially uninsurable.
- Thirdly, the extent to which the employment relationship put Mr Bellman and others at increased risk at the material time is a significant factor in considering the closeness between the relationship between the Mr Major and the act in question. With excess alcohol can come a range of problems including aggression; as the streets of any major town or city late on a Saturday night will bear testimony. The Defendant had paid for alcohol at the Christmas party at the Golf Club and no doubt Mr Major had consumed, at the least, his fair share. However alcohol is customarily provided at virtually all Christmas parties of this nature and taken in relative moderation it can be safely enjoyed; and here the party itself passed without event. Any increased risk of confrontation at the Christmas party, which included two young children amongst the guests did not materialise.
- What followed later arose in the context of entirely voluntary and personal choices by those present to engage in a heavy early hours drinking session. Given Mr Hancock's evidence it is likely that a large amount of alcohol had been consumed over some hours at the hotel by those who remained discussing matters. Even assuming that the company paid or was expected to pay for some or most of the eventual bill, I cannot see any increased risk of confrontation arising from the additional alcohol at the hotel as properly adding support to a finding of vicarious liability, as it was so far removed from employment.
- Standing back and considering matters broadly, what was taking place at 3.00 a.m. at the hotel was a drunken discussion that rose after a personal choice to have yet further alcohol long after a works event had ended. Given the time and place, when the conversation was, as it was for a significant time, on social or sporting topics, no objective observer would have seen any connection at all with the jobs of those employees of the Defendant present. That it then veered into a discussion about work cannot provide a sufficient connection to support a finding of vicarious liability against the company that employed them. It was, or without any doubt became, an entirely independent, voluntary, and discreet early hours drinking session of a very different nature to the Christmas party and unconnected with the Defendant's business. To use a hackneyed expression akin to "a frolic" of their own.
- In my judgment there was insufficient connection between the position in which Mr Major was employed and the assault to make it right for the Defendant to be held liable under the principle of social justice which goes back to the time of Holt CJ. Indeed I think it is a world away from circumstances which he and Lord Millet would have considered proper for loss distribution based on social or economic policy. The rule must have proper boundaries; it is not endless. To use Fleming's phrase to find its application here would be to foist the Defendant, in reality its insurer, with an undue burden and would effectively make it what as McLachlin J described as "an involuntary insurer".
- I fully recognize Mr Bellman is entitled to feel greatly aggrieved at the assault by Mr Major which has caused such serious injury. He is also entitled to feel aggrieved at the combined effect of Mr Major's claim that he acted in self defence and the statements made by Mr Harman leading to the mistake by the Crown Prosecution service. However sympathy with his position cannot impact upon the proper application of principle.
- So for the reasons that I have set out the claim fails.
- I leave it to the parties to see if an agreed order can be drawn up and if not to notify the court as to how long is needed for any further hearing (and whether it can be conducted by telephone).
Published: 05/12/2016 11:34