Personal Injury/vicarious liability
This personal injury claim concerned the limits of vicarious liability where a wrongdoing occurred away from work premises and outside working hours. Specifically, an assault of an employee by a director of a recruitment company that took place after a Christmas party. Temple Legal Protection provided litigation/ATE insurance cover for both the case where the original result went against the Claimant but in favour of the subsequent appeal that was recently won.
The Christmas party was held at a golf club which passed without incident. Some attendees were staying at a nearby hotel where it is believed the rooms were paid for by the company, as was the taxi from the golf club to the hotel.
John Major, the Managing Director of the recruitment company, suggested that the party could continue back at the hotel. The guests, including the claimant Clive Bellman, congregated in the lobby and more drinks were served there.
At about 3am in the morning a heated work-related discussion took place between the two. Major punched Mr Bellman twice, causing him to collapse, hit his head on the hard surface of the lobby and sustain a brain injury.
The question arose whether at the time the director struck the blow, was he ‘acting in the course or scope of his employment” so as to make the company vicariously liable.
The three-day liability trial took place before Judge Cotter QC (sitting as a High Court Judge) on 23, 24 and 25 November 2016. Judge Cotter held that the company could have been liable if the blow had been struck during the Christmas party itself but, as the assault in the hotel occurred after the party during a private drinking session, the company was not vicariously liable.
Temple Legal Protection who had funded this matter agreed to additionally indemnify an appeal to the Court of Appeal. What gave Underwriters at Temple optimism was:
a. The assault was carried out by the Managing Director;
b. The claimant and Managing Director were discussing business at the material time and this triggered the assault;
c. The Managing Director appears to have encouraged employees to attend the “after party” – it was an extension of the Christmas Party.
The Court of Appeal handed down its deferred judgment in early October 2018.
It was held that there was a sufficiency of connection between the Managing Director’s field of activities and the wrongful act. The judge at first instance was wrong to find that there was insufficient connection between the Director’s field of activities and the assault.
While the unscheduled drinking session was not a seamless extension of the Christmas party, it had to be seen against the background of the evening’s events. It was not just an impromptu drinks party between work colleagues which might happen on any night after work. The drinks occurred on the same evening as the work event paid for and orchestrated by the managing director.
Lord Justice Irwin cautioned: “The combination of circumstances in the instant case would arise very rarely. Liability would not arise merely because of an argument about work matters between colleagues where one was more senior than the other. The instant case was not authority for the proposition that employers became insurers for violent or other tortious acts by their employees (paras 38-40).”
This Court of Appeal decision certainly provides greater guidance to avoid inconsistency in this area going forward. A sensible and logical conclusion of facts has been made.
It should also demonstrate to employers the care that ought to be taken when hosting events for staff to ensure that there is a clear finishing point, especially given the amounts of alcohol and potential for trouble that often go hand in hand with the festive party season.
In the complex area of vicarious liability, the see-saw approach from judges is now moving in favour of the claimant – but we have to ask, for how long?
Temple Legal Protection remains committed to the cause for accessing justice and there are a range of products available to your law firm that enable this to happen. Our UK based, A-Rated ATE/litigation insurance policies [backed by Royal & Sun Alliance] provide sufficient cover for your client’s needs.
To find out about Temple Legal Protection’s ATE/litigation insurance for your firm’s personal injury claims please call 01483 577877 or send an email to email@example.com