The boundaries of liability
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A number of recent judgments have highlighted the unpredicable and fact-sensitive nature of cases concerning vicarious and occupiers' liability, writes Vijay Ganapathy
Recent years have seen the courts considerably widening the scope of vicarious liability. Everyone will recall JGE v Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938, where the Court of Appeal found the Roman Catholic diocese vicariously liable for the acts of abuse of one of its parish priests.
Catholic Child Welfare Society v Various Claimants and the Institute of the Brothers of the Christian Schools [2012] UKSC 56 is another significant decision where the relationship between the defendant institute and its brothers who committed abuse was again found to be ‘akin to employment’. More recently, in Cox v Ministry of Justice [2016] UKSC 10, the Supreme Court found the MoJ vicariously liable for acts committed by prisoners undertaking work within its prison.
These cases illustrate the broad range of circumstances in which such a finding could be made.
Vicarious liability
Last year, Mohamud v WM Morrison Supermarkets PLC [2016] UKSC 11 provided some further guidance on determining where a ‘close connection’ between the employment and the negligent act exists. Here, the claimant (despite losing at first instance and in the Court of Appeal) succeeded in proving that a petrol station attendant’s assault on him was an act that was closely connected with his employment.
Despite these decisions, a couple of unfavourable judgments for claimants handed down last month serve as a warning that the outcome of these cases can be unpredictable.
In Bellman v Northampton Recruitment Limited [2016] EWHC 3104 (QB), the court considered the defendant company (N) not vicariously liable for an assault committed by its managing director (M). This incident occurred following a Christmas party at a golf club organised by N. After this party, approximately half of those who attended went on to a hotel where some employees were staying. Here, various employees and some others who had attended the golf club had further drinks. Later, at around 3am, there was an argument following which M punched another employee (B) twice. B fell to the floor and struck his head, causing him serious injuries which included a skull fracture. Sadly, B suffered various ongoing symptoms which meant he lacked capacity to litigate.
The main issue for determination was whether M’s assault was closely connected with his employment by N. The court considered that as M was the managing director, he was essentially the ‘directing mind and will’ of N, which was a small company. It was also noted that N paid for the Christmas party and likely paid for the drinks at the hotel. N also paid for the hotel accommodation, as well as taxi fares to and from this hotel.
Despite this, the court found that the Christmas party ended when everyone had left the golf club. This is because the gathering at the hotel was considered an ‘impromptu drink’ and not part of a planned work event. In particular, it was noted that while there was some obligation on employees to attend the golf club party, there was no such obligation in respect of the gathering at the hotel. It was considered that this subsequent gathering arose as a result of personal choice. Essentially, the judge considered that this was ‘a frolic’ of their own. The fact that N paid the taxi fares had no bearing given it had intended to cover these expenses in any event, whether or not there was the impromptu drink.
Therefore, as the assault was considered to have taken place at a gathering not connected with M’s employment, N was found to be not vicariously liable.
‘Close connection’ test
There was a similar outcome for the claimant last month in Fletcher v Chancery Supplies Ltd [2016] EWCA Civ 1112. Again, the court had to determine the close connection test.
In this case, the claimant (F) was injured when he was riding on a power-assisted bicycle in the cycle lane. The accident occurred when an employee of the defendant (T) suddenly walked in front of F, causing a collision. At the time of the collision, it appears T was crossing the road to get to the defendant’s shop. However, the accident occurred at around 12:45pm and T would have finished his shift at noon that day. There was no evidence as to why he was returning to the shop, and regrettably T did not give evidence at trial. Because of this, the court concluded there was no basis on which to find that T was still at work. The Court of Appeal further found that even if T was at work, it was impossible to determine whether his act was sufficiently connected with his employment given the lack of information about why he was crossing the road.
Both Fletcher and Bellman highlight the fact-sensitive nature of these cases. The judge in Bellman pointed out that this rule must have ‘proper boundaries’ and is not limitless. However, it is very difficult to reconcile this judgment with Mahamud as it is not entirely clear why, in that case, the assault was deemed to have culminated from a ‘seamless episode’ of events connected with the petrol attendant’s employment whereas, in Bellman, the ‘impromptu drink’ was considered entirely separate from the Christmas party. In the latter case, the fact that the employees were not obligated to attend the hotel gathering was given considerable weight.
However, and not unsurprisingly, the claimant in Bellman has sought permission to appeal and it will be interesting to see if the Court of Appeal (and perhaps the Supreme Court) views the circumstances of this case in the same way.
Whatever the outcome, the remit of vicarious liability remains very broad. This is probably due to the courts’ understandable reluctance to define its boundaries, as this issue can arise in a range of different circumstances. Also, as Lord Nicholls commented in Dubai Aluminium Co Limited v Salaam & Ors [2003] 2 AC 366, the aspects giving rise to a finding of vicarious liability can vary from one type of case to another. As such, the courts need to make an ‘evaluative judgement’ in each case according to the particular circumstances. Therefore, determining the outcome in a novel situation will remain very difficult.
Occupiers’ liability
In Debell v Dean and Chapter of Rochester Cathedral [2016] EWCA Civ 1094, the court confirmed the extent of an occupier’s duty in respect of ensuring the safety of visitors.
In this case, the claimant (D) was injured when he walked through the defendant’s cathedral premises to meet friends for lunch. The route D and his wife took required them to go through a narrow gap between a low wall with a coping stone on top and a bollard. As D walked through this gap, he tripped on a small lump of concrete protruding from the base of the bollard and suffered an injured shoulder and a hernia.
At first instance, D succeeded because the judge found that the piece of concrete gave rise to a foreseeable risk of injury to someone walking in the way that D did. However, the Court of Appeal confirmed that mere consideration of foreseeability was insufficient, and stated that to hold an occupier liable, there needed to be something over and above the risk of injury from defects which are normally found on any road or pathway.
In particular, the court said there will always be some weathering and wearing, causing defects which might provide some risk of injury. However, the obligation on the occupier was to make the land reasonably safe for visitors, but not to guarantee their safety. As such, it was necessary to balance the nature and extent of the risk against the cost (not just the financial cost, which might be small, but also in relation to the time spent) of eliminating it. Otherwise, this would impose an unreasonable burden on defendants in respect of defects which arise through normal wear and tear.
The Court of Appeal therefore confirmed that the test is to determine whether the risk is reasonably foreseeable and whether there is a ‘real source of danger’ which a reasonable person would recognise as placing an obligation on the occupier to take action. In this case, it was necessary to consider whether the piece of concrete and the defect on the cathedral premises was something more than the everyday risk which pedestrians inevitably face. Lord Justice Elias noted this was an extremely small piece of concrete and it would be unlikely that a pedestrian would walk close to it. As such, he found the nature of the risk was not such as to create a real source of danger, and so the defendant succeeded in its appeal.
While the Court of Appeal’s comments that tripping and slipping can be everyday occurrences might be welcome for occupiers, each case will depend on its own facts. It should also be noted that the question of whether a defect is minor or one that requires remedial steps can be very subjective. As such, it is important that occupiers undertake and maintain a regular system of inspection to identify and repair any significant defects.
Vijay Ganapathy is a partner at Leigh Day