Mrs Sandra Shelbourne v Cancer Research UK
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lane |
| Judgment Date | 09 April 2019 |
| Neutral Citation | [2019] EWHC 842 (QB) |
| Docket Number | Case No: QB/0135/2018 |
| Court | Queen's Bench Division |
| Date | 09 April 2019 |
[2019] EWHC 842 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HON. Mr Justice Lane
Case No: QB/0135/2018
Robert Weir QC, Tim Grover (instructed by The Clarke Partnership) for the Appellant
Matthew White (instructed by DAC Beachcroft) for the Respondent
Hearing date: 28 February 2019
Approved Judgment
A. INTRODUCTION
On 7 December 2012, a Christmas party was held at the Cambridge Research Institute of Cancer Research UK (CRUK), a well-known charity, which carries out research into the origins and treatment of cancer. The Institute occupied premises at the Li Ka Shing Centre, which CRUK leased from the University of Cambridge. The 2012 Christmas party was the third that the Institute had held at the Centre. Each year a different department took responsibility for organising the party, using volunteer members of staff from the department concerned. In 2012 it was the turn of the Genomics Department, headed by Mr James Hadfield.
The party consisted of a buffet, some “oversized” games, a ceilidh and a disco. The event was ticket only, open to staff and their guests. Tickets could be bought in advance or on the door on the night.
Mr Hadfield 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.
Prior to joining CRUK, Mr Hadfield worked at John Innes Centre in Norwich, where he was 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.
Mr Hadfield's statement records that the thinking behind the risk assessment for the Christmas party was to cover as many eventualities as possible regarding potential hazards and how to mitigate them. This included “all the usual aspects of the event, including the oversized games, hard and uneven surfaces and collisions with other participants during activities”. Two additional security staff were on duty in order to prevent access to the laboratory.
One of those who attended the party was Robert Beilik. He was a visiting scientist at the Institute, employed by the University in Cambridge at its Wolfson Institute Brain Imaging Centre. He was not employed by CRUK but his involvement with the Institute entitled him to a security pass and to attend the party, along with CRUK's employees.
The appellant (referred to as the claimant in the court below) was one such employee. She worked at the Institute as an animal technician.
At around 10.30pm, the appellant was on the dance floor, dancing with her supervisor, Tracy Crafton. Robert Beilik went up to them and attempted to lift the appellant off the ground. In doing so, he lost his balance and dropped the appellant, resulting in her sustaining a serious back injury.
It is common ground that Robert Beilik had been drinking from at least at an early stage of the party, if not before it began. Prior to lifting the appellant, Robert Beilik had lifted Michelle Pugh, one of the volunteer organisers of the party. He lifted her up and put her down straight away. She laughed and went on her way and, she said, “gave it no further thought”.
Robert Beilik also lifted, without their consent, two other women at the party, neither of whom reported the matter.
The appellant brought proceedings against CRUK, which resulted in a hearing in Southend County Court in January 2018. In a reserved judgment given on 2 May 2018, running into 161 paragraphs, Mr Recorder Catford held that CRUK was not liable in negligence to the appellant for her injury and that CRUK was not vicariously liable for Robert Beilik's actions.
Permission to appeal against the Recorder's judgment was granted by Martin Spencer J on 11 December 2018, on the basis that the Recorder had arguably erred in law, both as regards his conclusions on liability in negligence and in relation to his conclusions on vicarious liability.
B. MAJOR CASE LAW
Before examining the Recorder's judgment in detail, and the criticisms of it made by Mr Weir QC, it is convenient to introduce the major cases to which both counsel referred me, in the course of their respective submissions.
In Everett v Comojo (UK) Ltd [2011] EWCA Civ 13, a guest in a members' club, a nightclub known as the Met Bar, attacked and injured another guest, stabbing him in the neck and abdomen. A waitress had earlier reported her concern about the attacker to her bar manager, rather than to one of the door supervisors.
The Court of Appeal held that the relationship between the management of the nightclub and its guests was one of sufficient proximity to justify the existence of a duty of care. At paragraph 32, Smith LJ held:
“Foreseeability of injury.
32. It is a well-known fact that the consumption of alcohol can lead to the loss of control and violence both verbal and physical. Lord Faulks acknowledged as much. In the present case, Comojo's own risk assessment recognises the existence of those risks. It must be foreseeable to any licensed hotelier that there is some risk that one guest might assault another. The risk may be low in respectable members-only establishments and much higher in a night club open to the public. The assessment of the degree of risk, which will dictate what precautions have to be taken, will vary. There cannot be any rule of thumb to apply to all night clubs. But it does not seem to me that, given its own risk assessment, Comojo could seriously argue that the risk of such assault was so low that it could safely be ignored.”
At paragraph 34, Smith LJ emphasised that, although there was a duty of care, the standard of care or scope of the duty “must also be fair, just and reasonable”. Smith LJ continued as follows:-
“36. The common duty of care is an extremely flexible concept, adaptable to the very wide range of circumstances to which it has to be applied. It can be applied to the static condition of the premises and to activities on the premises. It can give rise to vicarious liability for the actions of an employee of the occupier who, for example, might have created a temporary tripping or slipping hazard. I think that it is appropriate (fair, just and reasonable) that it should govern the relationship between the managers of an hotel or night club and their guests in relation to the actions of third parties on the premises. I do not think it possible to define the circumstances in which there will be liability. Circumstances will vary so widely. However, I think it will be a rare night club that does not need some security arrangements which can be activated as and when the need arises. What they need to be will vary. One can think of obvious examples where liability will attach. In a night club where experience has shown that entrants quite often try to bring in offensive weapons, it may be necessary to arrange for everyone to be searched on entry. In a night club where outbreaks of violence are not uncommon, liability might well attach if a guest is injured in an outbreak of violence among guests and there is no one on hand to control the outbreak. It may be necessary for the management of some establishments to arrange for security personnel to be present at all times within areas where people congregate. On the other hand, in a respectable members-only club, where violence is virtually unheard of, no such arrangements would be necessary. The duty on management may be no higher than that staff be trained to look out for any sign of trouble and to alert security staff.
37. In my judgment, the judge was also right in his conclusion that, in all the circumstances, Ms Kotze had not been in breach of duty. She had realised that there was a possibility of a confrontation between Croasdaile and one or more of the members of the appellants' group. Why she acted as she did, in going to speak to Mr Rosenblatt rather than summoning a door supervisor is not known; she was not available to give evidence. The judge could only consider whether a reasonable waitress in her position would have gone to fetch a door supervisor. In my view the judge's assessment of the reasonableness of her action is unassailable. There was no reason to think that a confrontation was imminent. The incident to which Mr Balubaid had taken exception had occurred a considerable time earlier. Certainly, Croasdaile's appearance gave rise to some concern but he was apparently Mr Balubaid's employee and Mr Balubaid was a valued customer with no previous history of causing trouble, either himself or through his employees. I would endorse the judge's conclusion that Ms Kotze could not have been criticised even if she had done nothing. As it was, she went to speak to her manager. That seems to me to have been a very sensible thing for her to do. A waitress in her position would not have wished, on her own initiative, to take a step which might have caused offence to Mr Balubaid and embarrassment to the club, by asking a door supervisor to intervene in some way. Telling Mr Rosenblatt about the situation and letting him decide what to do seems sensible. There was no apparent urgency; it was not as if a confrontation had begun and the risk of violence was imminent.”
On any view, Mohamud v W Morrisons Supermarkets [2016] UKSC 11 is a landmark in the law of vicarious liability. The claimant, having stopped at the petrol station outlet of a Morrisons supermarket in the Midlands, went to the sales kiosk to ask the employee there if it was possible to print-off some documents stored on a...
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...liable in situations where the individual acting inappropriately is a visiting expert (see Shelbourne v. Cancer Research UK [2019] EWHC 842 (QB)). Be aware that, by next year's party, there may be stronger protections in respect of third party harassment. Criminal conduct Hopefully, not som......