Vicarious Liability – Supreme Court Decisions

On 2 March 2016, the Supreme Court handed down two complimentary decisions in Cox v Ministry of Justice [2016] UKSC 10 and Mohamud v WM Morrison Supermarkets Plc [2016] UKSC 11 addressing the doctrine of vicarious liability in employment and employment-like relationships.

For a defendant to be held vicariously liable in tort for the actions of a wrongdoer, the following two-stage test must be satisfied:

1. there must be a relationship between the wrongdoer and the defendant which is capable of giving rise to vicarious liability; and

2. there must be a sufficiently close connection between the wrongdoing and the employment, so that it is fair and just to impose liability.

The decision in Cox concerns the first part of the test and Mohamud the second part.

Cox v Ministry of Justice

In Cox v Ministry of Justice Mrs Cox, a caterer employed at HM Prison Swansea, was injured when a prisoner working in the kitchen negligently dropped a large sack of rice on her back. Mrs Cox brought a personal injury claim against the Ministry of Justice arguing that it was vicariously liable for the prisoner’s wrongdoing.

At first instance the claim was rejected but the decision was reversed by the Court of Appeal which found that the relationship between the wrongdoer and the defendant was sufficiently akin to that of an employer and employee.

The Ministry of Justice appealed and the Supreme Court was required to consider whether a relationship other than that of employer-employee was capable of giving rise to vicarious liability. The Justices unanimously found that, in principle, a defendant can be liable for the actions of a wrongdoer even if the relationship is one other than that of employer-employee where:

1. harm is wrongfully done by an individual who carries on activities as an integral part of the business activities carried on by a defendant and for its benefit; and

2. where the commission of the wrongful act is a risk created by the defendant by assigning those activities to the individual in question.

In Cox, the court found that both of the above elements were satisfied and as such the defendant was found to be vicariously liable for the prisoner’s conduct.

Mohamud v WM Morrison Supermarkets Plc

In Mohamud v WM Morrison Supermarkets Plc Mr Mohamud stopped at a petrol station to enquire about printing some documents from a USB device. After refusing Mr Mohamud’s request, Mr Khan, an employee of the defendant, followed Mr Mohamud to his car, assaulted him and subjected him to a torrent of racial abuse.

At first instance it was found in favour of the defendant on the basis that there was not a sufficiently close connection between the wrongdoing and Mr. Khan’s employment. The Court of Appeal upheld the decision on the basis that the “close connection” test had not been met.

On appeal, the Supreme Court found in favour of the claimant. Giving the lead judgement, Lord Toulson restated the close connection test established in Lister v Hesley Hall Ltd [2001] UKHL 22 in terms of a two-fold test.

Firstly, the Court must determine the duties or the “field of activities” entrusted to the employee. This question must be addressed broadly. Secondly, the Court must decide whether there is a sufficient connection between the wrongdoer’s position of employment and the wrongful conduct so as to find the defendant vicariously liable.

In Mohamud, the Court found that the defendant had entrusted Mr Khan with the duty of attending to customers and responding to their inquiries. Answering Mr Mohamud’s request in a foul mouthed way and ordering him to leave the premises, although inexcusable, fell within the “field of activities” assigned to him.

The Court went on to state that what happened next was an unbroken sequence of events. In ordering Mr Mohamud to leave the premises, Mr Khan was purporting to act about his employer’s business. The Court found that although Mr Khan’s conduct was clearly a gross abuse of his position, it was sufficiently connected to the position for which he was employed – namely serving customers. The “close connection” test had therefore been satisfied and the defendant was found to be vicariously liable for the wrongdoer’s conduct.

Please note that this information is provided for general knowledge only and therefore specific advice should be sought for individual cases.