Assault and Vicarious Liability – Applying the close connection test in light of Mohamud and Bellman
By Tom Emslie-Smith
The festive season is nearly upon us, and many businesses might be forgiven for being a little nervous about what might occur at the annual office Christmas party. All the more so in the wake of Bellman v Northampton Recruitment Ltd  EWCA Civ 2214, which is the latest authority to consider the scope of vicarious liability where an employee commits a violent attack against a colleague or customer.
In reality, establishing responsibility on the part of the employer requires more than simply pointing out that an assault was committed by one of its employees. Drawing the line between violent attacks that are purely personal, and those for which the employer should be held liable can be challenging. Advisors must be familiar with the close connection test. The following article offers some points of guidance that can be derived from cases involving physical assault, which have made a significant impact on the law of vicarious liability in recent years.
The Close Connection test
Traditionally, the Courts have approached the determination of vicarious liability by asking whether the wrongdoer was acting in the course of his employment, or whether he was on a frolic of his own. In Lister v Hesley Hall Ltd  UKHL 22, the House of Lords developed a more flexible test, which is whether the employee’s tort was so closely connected with his employment that it would be fair and just to hold the employers vicariously liable.
Since Lister, the close connection test has been applied in a number of assault cases. In Gravil v Carroll  EWCA Civ 689, there was a close connection between Mr Carroll’s employment as a rugby player and his “off-the-ball” assault in a mid-match punch up. In Mattis v Pollock  1 WLR 2158 a close connection was found when a bouncer at a night club stabbed a customer, despite the fact that he had gone home to fetch the knife. In Wedall v Barchester Healthcare Ltd  EWCA Civ 25, the Court of Appeal considered whether violent responses to managers’ instructions are closely connected with an employee’s job. ‘Not necessarily,’ was the answer. There is no special rule governing relationships between employees. In each of these cases there is the perennial problem of distinguishing between acts that are connected to the employee’s job and acts that are purely personal.
In Mohamud v VM Morrison Supermarkets plc  UKSC 11 the attendant at a petrol station, in an unexplained outburst, verbally abused a customer at the kiosk before following him out onto the station forecourt and assaulting him. The Supreme Court affirmed that the close connection test should still be followed, but took the opportunity to simplify its application. Lord Toulson laid out the two stage test that is to be followed:
1) 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?
2) Was there a sufficient connection between the position in which the employee was employed and his wrongful conduct to make it right for the employer to be held liable?
Lord Toulson added that the cases where the necessary connection has been found are cases in which the employee has used or misused the position entrusted to him in a way which injured the third party.
The Supreme Court applied the close connection test widely, holding that assault on the station forecourt was connected with the attendant’s field of activities. Firstly, there was an unbroken sequence of events between his response to Mr Mohamud’s initial enquiry and the eventual attack. Secondly, during the attack the assailant warned Mr Mohamud not to return to the petrol station, thereby purporting to be about his employer’s business.
In October this year, the Court of appeal gave judgment in Bellman v Northampton Recruitment Ltd  EWCA Civ 2214, in which the Court was required to apply the close connection test through the Mohamud lens. The case involved a vicious assault carried out by Mr Major, a managing director of the Defendant company, after a work Christmas party. The Claimant employee was left with traumatic brain damage and sued the Defendant company for Mr Major’s actions.
Mr Major was the directing mind of the company. He had a wide remit and a wide range of duties, including the organisation of the Christmas party, which he saw as an important part of maintaining employee morale. The Christmas party was laid on at company expense and held at Collingtree Golf Club. At around midnight, when the party was drawing to a close, Mr Major arranged for taxis to take the attendees to the Hilton hotel for more drinks. After some time of general conversation, the topic returned to work and an argument broke out about the appointment of a new employee. Mr Major summoned the employees and began to lecture them about the fact that he was in charge and things would be done his way. When the Claimant again challenged Mr Major about the new employee, Mr Major shouted at him and punched him several times, knocking him out and causing him to fall to the ground.
The trial judge considered the circumstances of the assault, including the fact that it took place at an impromptu drinks party. He drew a distinction between the drinks at the hotel and the Christmas party in that the former was not a seamless extension of the latter. He also did not accept that Mr Major could always be considered to be on duty, regardless of the circumstances. What transpired at the hotel, the judge held, was “in the context of entirely voluntary and personal choices.”
The Court of Appeal disagreed. Their Lord and Ladyships were urged to consider what Mr Major was actually authorised to do as the yardstick to judge whether the assault fell within his field of activities. It was argued that he did not have actual authority to arrange the impromptu drinks at the hotel. This was emphatically rejected as being too narrow an approach. LJ Asplin said,
“If one is not hidebound by actual authority, it is irrelevant whether Mr Major’s contract of employment was sufficiently widely drawn, for example, to include the scope for him to call a meeting outside office hours. Instead, it is necessary to consider the field of activities assigned to the employee in a broad sense and to look at the matter objectively taking account of the position in which the employer has placed the wrongdoer.”
Having stated that the “field of activities” must be approached broadly, the Court of Appeal held that there was a sufficiently close connection between Mr Major’s field of activities and the assault in the hotel at 3am. The whole altercation arose because of a challenge to his managerial authority, which he was seeking to re-establish. He was wearing his “metaphorical managing director’s hat” as he delivered the lecture, and he drove home the message with the use of blows. The attack was therefore an abuse of the position entrusted to him as a manager.
Lady Justice Asplin agreed that the unscheduled drinking session was not seamlessly connected to the Christmas party. Nevertheless, given that the drinking session in the hotel was orchestrated by Mr Major and paid for in part by NR, he was present as a managerial director, and not simply as a fellow reveller.
Five practical pointers for applying the close connection test
There will undoubtedly be future cases where inexcusable acts are carried out by employees. The two stage test in Mohamud v VM Morrison is, for the moment at least, the essential exercise for the court to address. Nevertheless, the line between acts that are closely connected to the wrongdoer’s job and those that are purely personal can be difficult to draw. The decided cases offer the following points by way of guidance:
1) Analyse the context, not just the conduct. It is abundantly clear from recent authority that even the most egregious of conduct can come within the bounds of vicarious liability. Employers will naturally wish to argue that acts of violence cannot possibly come within the scope of what was being asked of the employee. However this represents a misplaced focus on the nature of the act, rather than the context in which it took place. The key question is whether the wrongdoer has abused the position entrusted to him or her in committing the tort.
2) Think broadly about the nature of the job. The take home lesson from Bellman is that the question “what was the nature of the job?” is not to be answered simply by looking at what the employee is authorised to do. The test is broader than this, requiring the Court to consider the field of activities assigned to the employee and the position that the he or she has been placed in. This could mean, for example, that events outside of working hours or acts that fall foul of expected working practices can be within an employee’s field of activities if they happen in the context of the job that the employee has been assigned.
3) Seniority matters. Positions of authority and managerial responsibility invariably carry with them the potential for abuse of power. This was the central feature in Bellman, which meant that the wrongdoer’s conduct could be held against the Defendant company even though it took place off-site and well outside of working hours. Mr Major had worn his “manager’s hat” and asserted his authority at a time and in a place that was not associated with the workplace. Lady Justice Asplin cited two cases in which vicarious liability was established, the first of which involved a police officer who fired a gun shortly after announcing he was a policeman, the second of which involved a senior army officer’s failure to take care of a more junior ranking officer. Both cases demonstrated that Defendants can be vicariously liable because their employees have been placed in positions of authority and responsibility, even in circumstances where they are off-duty. Thus, if the wrongdoer has a relationship of authority over the victim, that is likely to be a highly relevant feature in the determination of vicarious liability.
4) Timelines may assist. In some cases there may be a temporal break in the chain of events that means the wrongdoer’s employment is “past history” by the time of the assault or negligent act (see Warren v Henleys  2 All ER 935). Take care, however, not to treat the timeline as determinative in every case. One must ask whether the temporal gap was a factor underpinning a change in the relationship between the parties. The Defendant company was held to be vicariously liable for Mr Major’s conduct even though the party in the hotel was not a seamless extension of the official work party. The key point there was that Mr Major continued to adopt a position of managerial authority even in the context of a 3am off-site drinking session.
5) Advise with caution. In borderline cases it must be borne in mind that, while much guidance can be derived from the authorities, there is a degree of uncertainty and imprecision involved in the assessment of vicarious liability. The appeal Courts have rejected precise yardsticks and emphasised that the determination is based on flexible principles of social justice. The exercise calls for a broad consideration of the circumstances and identification of all the factors that could weigh in either direction, rather than a precise determination based on a single criterion. In many cases there will be an element of risk and unpredictability.
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