Helen Pooley considers the decision in Shelbourne v Cancer Research UK  EWHC 842
Vicarious Liability Revisited
We might still be seven months away from the beginning of the festive period 2019 but those that are already thinking about their work Christmas parties might be interested in this recent High Court decision.
In December 2012, a Christmas party was held at the Cambridge Research Institute of Cancer Research UK. The party consisted of a buffet, some 'oversized' games, a ceilidh and a disco. The event was ticket only and was open to staff and their guests. A risk assessment was completed to cover 'all foreseeable hazards' - the biggest concern appears to have been preventing people returning to the laboratories during the party or afterwards. Two additional security staff were on duty to prevent any access to the laboratories. The risk assessment also covered hazards such as the oversized games, hard and even surfaces and collisions with other participants during activities.
The Appellant was an attendee at the party. She worked for Cancer Research UK. At around 10.30pm, she was on the dancefloor, dancing with her supervisor. A visiting scientist (who worked in the laboratories at the Institute) went up to the Appellant and her supervisor and attempted to lift the Apellant off the ground. In doing so, he lost his balance and dropped the Appellant - she sustained a serious back injury.
It was common ground that said scientist had lifted two other women at the party, without their consent - neither had reported the matter at the time.
The Key Issue
The judgment is thorough and clear and worth a read.
However, the key issue in respect of vicarious liability was those articulated in Mohamud v WM Morrisons Supermarket plc  UKSC 11
a) What functions or 'field of activities' have been entrusted by the employer to the employee or, in everyday language, what was the nature of the job?
b) Was there a 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?
The Recorder, whose decision was under appeal, had taken the view that the scientist's 'field of activities' involved working in the laboratories at the Institute. It did not extend beyond that and he had therefore not found Cancer Research UK to be vicariously liable for his actions.
The Appellant sought to argue that the relevant 'field of activities' was to 'interact with fellow partygoers in alcohol-infused revelry, leading to the setting aside of the ordinary boundaries of social interaction'. The Appellant argued all of this was authorised by the employer, Cancer Research UK for its own benefit since it stood to gain from the enhancement of its employee's morale.
The Appellant argued that if this were the field of activities, it was evident there was a sufficiently close connection between that field and the scientist's wrongful conduct in relation to the Appellant. Therefore, the Appellant submitted that both questions set by Mohamud fell to be answered in her favour.
Mr Justice Lane, on appeal, took the view that in the Appellant's scenario, it is the employer's self-interest in organising the office or works Christmas party that is key. Mr Justine Lane did not consider this description of the average office or works Christmas party is 'one that the archetypal reasonable person would recognise as representing reality. As a general matter, it overstates the position of the employer and, conversely, serious understates the motivation and autonomy of those attending'.
Mr Justice Lane took the view that 'the requirement to address the field of activities "broadly" means what it says. It is not an acknowledgement that the concept has no boundaries. It is, rather, a direction to judges to look beyond the question of actual authority and examine " a wider range of conduct that acts done in furtherance of [the employee's] employment (Mohamud, paragraph 22)'
He went on to find that the Recorder had not misconstrued the evidence on this matter or that, if he had examined the evidence correctly, he would have been required in law to find that the 2012 Christmas party was an event 'held for the benefit of Cancer Research UK at which employees (including the scientist) were encouraged by Cancer Research UK to engage in alcohol-fuelled intimacy'. The Appeal was dismissed.
Whilst he commented it was an extremely unfortunate accident, Mr Justice Lane reminded us that 'the ascertainment of what social justice requires, which lies at the heart of the law on vicarious liability, is not a journey down a one-way street. The desirability of enabling those who have suffered injury at the hands of others to recover adequate financial compensation needs to be balanced against the wider social consequences which may ensue from achieving this result through the imposition of vicarious liability'.
Mr Justice Lane was sceptical of the Appellant's attempt to widen the 'field of activities' too much in this case. He has emphasised the need to ensure an assessment of the 'field of activities' is kept firmly within the bounds of reality. Whilst Mohamud allows us to look beyond the question of actual authority to explore a wider range of conduct when considering the 'field of activities' issue, this exercise does have limits.
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