30 September, 2014
The law on vicarious liability has moved on after two recent Court of Appeal decisions, Mohamud v WM Morrison Supermarkets Plc  EWCA Civ 116 and Cox v Ministry of Justice (Rev 2)  EWCA Civ 132.
Mohamud v WM Morrison Supermarkets Plc 
The issue was whether there was a sufficiently close relationship between the wrong doing and the employment of the employee. The claim arose out of an incident at a petrol station kiosk. Mr Mohamud visited the kiosk as a customer and asked, politely, if there was a printing facility. Mr Khan responded in an abusive fashion, including racist language. Mr Mohamud left the kiosk and walked to his vehicle. He was immediately followed by Mr Khan, who opened the front passenger door and partly entered the vehicle. He shouted violent abuse and punched Mr Mohamud. When he got out of his car to close the passenger door, he was attacked by Mr Khan, who punched him twice to the head. He then leapt on Mr Mohamud and subjected him to a serious attack involving punches and kicks while he was curled up on the petrol station forecourt.
The judge found that the employer was not vicariously liable. There was not a sufficiently close relationship between the wrong doing and the employment. The fact that the assault had taken place while Mr Khan was on duty at his place of work was relevant, but not conclusive. The mere fact that the employment provided the opportunity, setting, time and place for the assault was not necessarily sufficient to fix the employer with liability. Moreover, the fact that Mr Khan's job included interaction with the public did not, by itself, provide the necessary connection. Some factor or feature going beyond interaction between the employee and the victim was required. Mr Khan's duties involved assisting customers and ensuring that the shop and petrol pumps were in good running order. He had specific instructions not to confront angry or abusive customers, and he had had training on that subject. It was found that the attack was brutal and unprovoked, and that he had carried it out purely for reasons of his own. He had not been given duties which involved the clear possibility of confrontation and the use of force, nor had he been placed in a situation where an outbreak of violence was likely. The Court of Appeal commented that the law was not yet at a stage where the mere fact of contact between a sales assistant and a customer, which was plainly authorised by an employer, was of itself sufficient to fix the employer with vicarious liability.
Cox v Ministry of Justice (Rev 2) 
The issue was whether a prisoner performing duties during the course of his internment for the benefit of the Prison Service was in a relationship akin to employment. Mrs Cox had worked as the catering manager at a prison. When unloading a consignment of food under her supervision, a prisoner had dropped a sack causing a food spillage. Mrs Cox instructed all of the prisoners to stop working until the spillage had been cleared but, negligently and contrary to her instructions, another prisoner continued working and dropped a sack onto her back while she was kneeling on the floor clearing the spillage. At first instance the judge concluded that, although the ministry's relationship with the prisoner exhibited some salient features of the employment relationship, including the fact that he was compensated for his kitchen work, an imposition of vicarious liability was not justified.
The Court of Appeal overturned the decision, finding that the Prison Service was vicariously liable for the negligent acts of the prisoner. It was found that the relationship was akin to employment.
The two cases demonstrate how the scope of vicarious liability has been extended. It has been made clear by the Court of Appeal that a traditional service contract is no longer required to establish a "sufficiently close relationship". However, there can be some relief for potential Defendants that the duty was not extended in the case of Mohamud. Whilst the Court was sympathetic towards Mr Mohamud, it refrained from imposing liability on an employer who was not at fault. As Lord Justice Christopher Clarke commented that would have been "a step too far".
For further advice on vicarious liability or on any Employers Liability matter, please contact our specialist Forbes' team on 01254 662831.