Judge rejects finding of vicarious liability following altercation at a post-works event

In order to succeed in a claim for vicarious liability against a company, there must be (1) the necessary relationship between the company and the wrongdoer and (2) the necessary connection between that relationship and the wrongdoer's conduct. In the recent Supreme Court decision of Muhamud v VM Morrison Supermarkets, the Supreme Court held that two matters should be considered: (a) what functions or "field of activities" have been entrusted by the employer to the employee (and this question should be addressed broadly); and (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 for reasons of social justice.

In Muhamud, the Supreme Court found that the attack by the employee was within the "field of activities" assigned to him, because he had been dealing with customers at the time, and the attack resulted from an "unbroken sequence of events" (even though he performed those activities in an inexcusable manner). By contrast, there was no finding of vicarious liability where the employee in Warren v Henlys [1948] attacked a customer who had left the premises and later returned to make a complaint.

In this case, the employee attacked another employee at a spontaneous post-Christmas party drinks at a hotel near the Christmas party venue. HHJ Cotter QC held that:

(1) It couldn't be said that the employee was "on duty" just because he was in the company of other employees at the time.

(2) The assault was not committed during the organised work social event. There was a substantive difference between the Christmas party and the later impromptu drinks and the latter was not a "seamless extension" of the former: "In substance what remained were hotel guests, some being employees of the Defendant some not, having a very late drink with some visitors".

(3) Although the words spoken by the wrongdoer and claimant were important, there was no support for the proposition that "merely raising something that relates to duties at work has the effect of itself of changing a conversation or interaction between fellow workers into something in the course of employment, regardless of the surrounding circumstances".

(4) Nor did social justice require a finding of vicarious liability here: "The rule must have proper boundaries; it is not endless…to find its application here would be to foist the Defendant, in reality its insurer, with an undue burden and would effectively make it what as McLachlin J described as "an involuntary insurer".

COMMENT: This case, one of the first to comment on Muhamud, has emphasised the importance of timing when considering if a defendant is vicariously liable for the wrongdoing of its employee. Had the assault taken place at the Christmas party, rather than after it, the defendant would most probably have been found liable. As the judge put it: "the organised event at the Golf Club had ended and as a result the expectation or obligation on any employee to participate had ended. .. There was not only a temporal but a substantive difference between the Christmas party at the Golf Club and the drinks at the Hilton Hotel".