Vicarious liability – yet another twist in the tale!

Vicarious liability is where an employer can be held responsible for the actions of an employee – but what if the actions of the employee have little or nothing to do with what they are employed to do? Should the employer be held liable, and can an employer or other organisation be held responsible for the actions of those who are not its employees?

The courts and Tribunals have wrestled with these questions many times, and we have seen several developments in this area of law in recent years. For example, in 2016 we covered two Supreme Court decisions on vicarious liability (our article can be found here) and most recently last October we wrote about the Bellman v Northampton Recruitment case (article here) where a company was found liable for the Managing Director’s assault of an employee at a spontaneous after-party following the company Christmas do. The trend with all of these cases has tended to be that the courts found that vicarious liability did apply.

The latest twist in the vicarious liability tale yet again involves a Christmas party, but this time a different approach was taken.

In Shelbourne v Cancer Research UK, Ms Shelbourne suffered a back injury after she was ‘manhandled’ on the dancefloor at the Christmas party, lifted up and dropped. The person who dropped her was a scientist who had been working for Cancer Research, but not as an employee. He had already lifted up three other women that evening before approaching Ms Shelbourne, but while he was holding her he lost his balance and fell. She argued that it was an accident waiting to happen, and that her employer should have intervened. She brought a claim against Cancer Research UK, arguing that the charity should be liable for what had happened at the party.

The High Court concluded that Cancer Research should not be liable because the incident was not ‘reasonably foreseeable’. Although the judge had sympathy for Ms Shelbourne’s injury, he felt concerned that imposing vicarious liability on Cancer Research in this case could lead to strict policing and risk assessing of social events in a way that most people would feel was “health and safety gone mad.” He also felt that employers might decide not to run such events at all.

These cases always do depend on their own facts, and it was of course relevant that the perpetrator was not a Cancer Research employee. However, it does form an interesting contrast to the previous case law, and may also bring comfort to employers who worry about their liability for incidents that happen at work-related social events.

It is not yet known whether Ms Shelbourne might appeal – if she does, we will of course keep you updated on any future developments.