Bell v Alliance Medical Limited & Others [2015]

It is a truth universally acknowledged that an employer will be vicariously liable for the negligent acts of their employees when such acts happen in the course of their employment.  What is often forgotten is that the employee remains jointly and severally liable with that employer.   This interesting case serves as a useful reminder to defenders/ insurers of that principal and of the right they have to pass on a liability to an individual employee.

The defenders in Bell were contracted by the Health Board to provide scanning services at Forth Valley Hospital.  During a scan, the pursuer's artery was punctured when the radiographer was cannulating her arm. It was established that striking the artery was not in itself negligence but the pursuer argued that there was a spurt of blood which ought to have alerted the radiographer to the fact that the artery had been punctured. That in turn should have led to the pursuer receiving urgent medical attention. The radiographer did not remember seeing any blood. This factual dispute was determinate of liability and the Court found in favour of the pursuer.

What distinguishes this case is that the defenders sought a right of relief against the radiographer, (who was their own employee) and brought her into the action as a third party.  She in turn denied that she was liable to make a contribution to her employer's liability and argued that they owed a non-delegable duty of care to the pursuer.

The defenders based their claim largely upon the 1957 House of Lords decision in Lister v. Romford Ice & Cold Storage Ltd.  In that case, it was held that an implied term of an employee's employment contract was that he had a duty to exercise due care and if he failed to so, that he indemnify his employer for the loss caused by his negligence.

Counsel for the radiographer argued that the attempt to rely upon Lister was misconceived, not least because it was limited to circumstances in which an employee's negligence had caused injury to a fellow employee.  The Lord Ordinary, however disagreed with this submission. Whilst he conceded that the case was outmoded and used language "redolent of a bygone age" he held that the considerations underpinning the decision remain the law in Scotland and found that the defenders were entitled to a right of relief from the radiographer employee.  Additionally, he found that the radiographer was not entitled to rely upon her own negligence to secure a right of relief from the defenders.   

The Lord Ordinary recognised that the radiographer had the benefit of insurance as a consequence of her membership of the Society of Radiographers but there was nothing in principle which would have prevented the defenders seeking an indemnity from her in the absence of insurance.  Bearing that in mind the Lord Ordinary advised that a prudent employee ought to seek insurance for themselves – particularly if that employee has any form of independent wealth.

Only time will tell whether insurers will come to rely on Bell, which has breathed new life into the ratio of Lister.   It should be borne in mind that employers/insurers have long had the ability to seek an indemnity from an employee but yet have historically chosen not to do so.  That being said, each case turns on its merits and this important decision which consolidates an oft forgotten principal, may prove to be significant.