Vicarious Liability - Supreme Court Hands Down Long Awaited Judgments

Article

08 March, 2016

The Supreme Court has today published its long awaited judgments on two cases: Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11 and Cox v Ministry of Justice [2016] UKSC 10.

In the case of Mohamud v WM Morrison Supermarkets plc, the Supreme Court was asked to consider the test for vicarious liability, in particular, whether the claim failed the "close connection test". In this matter, Mr Mohamud had stopped at a Morrisons petrol station and had asked a Morrisons staff member whether he could print some documents from a USB stick. The claimant was then subjected to an unprovoked and violent assault by Mr Khan. Mr Mohamud sued Morrisons, but the Recorder and the Court of Appeal held that Morrisons were not vicariously liable.

In the case of Cox v Ministry of Justice, while working as the catering manager at HMP Swansea, the claimant was injured in an accident caused by the negligence of a prisoner carrying out paid work under her supervision in the prison kitchen. It was claimed that the Prison Service (MoJ) were vicariously liable for the negligence of the prisoner. The Court of Appeal overturned the decision of the first instance judge and held that the Prison Service was vicariously liable. The question before the Supreme Court was whether the relationship between the Prison Service and the prisoners working in a prison kitchen was capable of giving rise to vicarious liability; and if there was such a relationship, whether it was sufficiently connected to the act of the prisoner to justify the imposition of vicarious liability.

In both cases, the Supreme Court found unanimously against the employers. In the Mohamud case the Court found the correct test was the 'close connection test'.

  • First, the court must ask what was the nature of the job that been entrusted by the employer to the employee.
  • Second, the court must decide whether there was 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.

In this instance, it was Mr Khan's job to attend to customers and respond to their inquiries. What happened after the claimant had made his request to Mr Khan was an unbroken sequence of events. The connection between the field of activities assigned to Mr Khan and his employment did not cease at the moment when he came out from behind the counter and followed the claimant onto the forecourt. The Court concluded that it was not correct to regard Mr Khan as having metaphorically taken off his uniform the moment he stepped out from behind the counter. When Mr Khan followed the claimant to his car and told him not to come back to the petrol station that was an order to keep away from his employer's premises. In giving the order he was purporting to act about his employer's business. The Court stressed that Mr Khan's motive in the attack was irrelevant. It did not matter whether he was motivated by personal racism rather than a desire to benefit his employer's business.

The Cox case concerned the relationship between the primary tortfeasor (the prisoner) and the defendant. Lord Reed gave guidance on the sort of relationship which may give rise to vicarious liability where the defendant and the tortfeasor are not bound by a contract of employment. The Supreme Court stressed that in modern life, a defendant need not be carrying on activities of a commercial nature for profit, it is sufficient that there is a defendant carrying on activities in the furtherance of its own interests. The individual for whose conduct it may be vicariously liable must carry on activities assigned to him by the defendant as an integral part of its operation and for its benefit. The defendant must, by assigning those activities to the tortfeasor, have created a risk of his committing the tort. In this instance, the prisoners work under the direction of prison staff. Mrs Cox was injured as a result of the prisoner's negligence in carrying on activities assigned to him, and the Court therefore held that the prison service was vicariously liable to her.

Forbes comment

Whilst the two decisions are not ground breaking, the law has undoubtedly been extended.

In Cox, the Court confirmed the type of relationships giving rise to vicarious liability has evolved to reflect modern day realities. The Court has made it clear that it will be willing to adopt a wider approach when establishing whether a relationship exists.

In Mohamud, the Court examined the nature of the employee's job and what "field of activities" had been delegated to the employee. The Court specifically stated that the employee's motive was not relevant. Going forward, this decision will make it harder for employees to argue that the actions of employees are not connected to his/her employment.

For more information please contact Sarah Wilkinson.

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