Last reviewed 17 April 2019
It is a phrase more often seen in the tabloid press but, according to the High Court, if an animal technician had succeeded in her claim against Cancer Research UK (CRUK), it would have been seen as an example of “health and safety gone mad”.
Sandra Shelbourne sued CRUK for £300,000 claiming that she suffered severe back injuries after being lifted and dropped by a drunken scientist at a staff Christmas party in 2012.
The employee organising the event had previously been trained in the completion of risk assessments. As part of his CRUK role, he was also required on a regular basis to complete risk assessments in relation to his laboratory.
Before the Christmas party, he completed a risk assessment, in order to cover what he described as “all the foreseeable hazards of an event at CRUK”. His principal concern was to prevent people returning to the laboratories, either during the course of the party or afterwards; so access to those areas was restricted after a particular time.
His assessment took account of the fact that the event included some “oversized games”, a ceilidh and a disco.
The visiting scientist involved in the incident which provoked this case had been drinking and had already lifted several women at the party, without their consent but without any reports being made.
However, in attempting to lift 61 year-old Ms Shelbourne, he lost his balance and dropped her.
A subsequent hearing in the County Court decided that CRUK was not liable in negligence to the appellant for her injury and that it was not vicariously liable for the visitor’s actions.
The full text of the High Court ruling on the case, available at https://bit.ly/2P7Wkva, sets out details of the major cases to which both counsel referred in support of their positions.
Lawyers acting on behalf of CRUK claimed that the accident was not foreseeable and that, if the charity lost the case, it could act as a disincentive to organising staff parties.
Rejecting Ms Shelbourne’s appeal, the High Court concluded: “In conclusion on this issue, the Recorder (at the County Court hearing) was not wrong to find that the respondent took reasonable steps in the planning and operation of the party. No duty of care was breached. The claim for negligence was, accordingly, not made out”.
It also ruled against the claim of vicarious liability.
Although Mr Justice Lane agreed with the Recorder that it was extremely unfortunate that the incident occurred and that the appellant was injured, he said that the work of the visiting scientist was not sufficiently connected with what happened at the party as to give rise to vicarious liability.
While he acknowledged that an increased risk of inappropriate behaviour and injury arose where alcohol was available for consumption, Judge Lane said that, in context, the existence of that general risk did not by itself mean that the risk assessment carried out was wanting.
The implications of the arguments advanced in support of Ms Shelbourne’s case would otherwise be that any event where alcohol was available would require: a written declaration, signed by the attendees, that they will not behave inappropriately; a risk assessment encompassing eventualities stemming from all such forms of inappropriate behaviour; and attendance by trained staff.
Comment from Peninsula Associate Director of Legal, James Potts
This judgment will likely come as welcome news to employers who may have hesitated to organise social gatherings such as Christmas parties due to concerns over the health and safety obligations placed upon them.
As seen here, while employers do have a common duty of care towards their employees, something that does extend to work-organised social events, this is an extremely flexible concept that is adaptable to a very wide range of circumstances.
Inviting employees to a party alone does not place them at additional risk of harm that employers must prepare for; such a conclusion would overstate the position of the employer and understate the autonomy of their employees.
When assessing if a company is vicariously liable for the actions of individuals at such an event, courts will assess what could reasonably have been done in this situation to prevent the action.
There is also a further reiteration of the “sufficient connection” that needs to be established between the business and the conduct in order to prove a vicarious liability claim. In this circumstance, the perpetrator’s action had nothing to do with his work for the company; he was invited along to a social event and his role did nothing but provide opportunity for his actions.
Despite this, the judgment does reiterate that vicariously liability can still be found even if the person committing the act is not be a direct employee; they simply need to be integral to the business.