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Risk Assessments and Vicarious Liability for Personal Injury Suffered at Work Parties

Medico Legal

by Anna Henderson, Herbert Smith Freehills

A High Court ruling has emphasised the limits to vicarious liability for personal injury suffered at a postwork party and provided guidance on an employer’s duty to carry out a reasonable risk assessment.

In Shelbourne v Cancer Research (UK), an employee was seriously injured while dancing at a Christmas party when a visiting scientist, who had been drinking, tried to pick her up but dropped her. The Court rejected her contention that, if an event was to include alcohol, the employer’s obligations were to provide non-participating, trained staff to look out for trouble at the party and to require each attendee to sign a written declaration that they would not act inappropriately. The Court considered that the employer’s risk assessment was sufficient in taking into account the fact that alcohol would be available (it put in place security to ensure partygoers did not access the work laboratories, and addressed the risk of accidents caused by uneven surfaces or collisions whilst playing the games provided). It did not need to go on to consider what might happen should an inebriated person act recklessly on the dancefloor, given that there had been no previous incidents of inappropriate behaviour caused or contributed to by the consumption of alcohol and no previous complaints about the scientist’s behaviour. Had this not been so, more might have been required of the employer.

The Court also ruled that the employer was not vicariously liable for the scientist’s behaviour. An employer will be vicariously liable if there is a sufficiently close connection between the employment and the employee’s wrongdoing to render it just and reasonable to impose liability, ie, the wrongdoing was within the “field of activities” assigned to the employee. In this case, the conduct was held to be outside the “field of activities” performed by the scientist, which was simply his research work. The Court rejected the claim that his “activities” included 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”. The party had been provided because of staff expectations, not to derive benefit for the employer.

The case can be contrasted with that of Bellman v Northampton Recruitment Ltd, where an employer was held vicariously liable for a managing director’s drunken assault on a colleague leading to very serious personal injury. The incident took place at drinks following on from the company Christmas party, when the managing director (and also owner of the company) was lecturing the staff present to assert his authority and took exception to a colleague questioning one of his decisions. The director was responsible for all management decisions in a relatively small “round-the-clock” company, the drinks had followed on from a work event and the director had chosen to wear his “metaphorical managing director’s hat” by delivering the lecture; as such he was not merely one of a group of drunken colleagues whose conversation turned to work. The attack could therefore be seen as a misuse of his authority and was sufficiently connected with his job for vicarious liability to be imposed.

Note that further developments are expected in this area. Morrisons have been granted leave to appeal to the Supreme Court against the Court of Appeal ruling that an employer can be vicariously liable for an employee’s misuse of data, even where it has done as much as reasonably possible to prevent the misuse and the employee’s intention was to cause reputa tional or financial damage to the employer.)

Case references are:

Shelbourne: [2019] EWHC 842

Bellman: [2018] EWCA Civ 2214

Anna Henderson

Professional Support Consultant, London

+44 20 7466 2819

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