Supreme Court says employers pay in vicarious liability clash

Case: Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11

The Supreme Court considered whether an employer could be held to be vicariously liable for an employee’s unprovoked violent assault on a customer, in a case that saw the Court assess the test for vicarious liability.

In the context of employment, the principle of vicarious liability essentially states that an employer is liable for the torts of employees committed against third parties in the course of the employees’ job. The Supreme Court overturned the decision of the Court of Appeal, adding to growing number of case law in this area.

Background: Employers will be liable for civil wrongs committed  by an employee under the doctrine of vicarious liability where there is a sufficient connection between the employee and the wrongdoing. The analysis involves a two stage test.

  1. Is there a relationship between the primary wrongdoer and the person alleged to be liable which is capable of giving rise to vicarious liability?
  2. Is the connection between the employment and the wrongful act or omission so close that it would be just and reasonable to impose liability?

The vicarious liability test was refined by the House of Lords in Lister v Lister [2001] UKHL 22. In this case, the second stage of the test, ‘sufficient connection’ was established. The policy objective behind the question is based on determining whether the torts were ‘so closely connected with the employment that it would be fair and just to hold the employers vicariously liable. On that basis, the House of Lords held that the employers of a warden were vicariously liable for his sexual assault of boys who were resident at a boarding school.

In Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48, Lord Nicholls expressed that the assessment of whether there is a sufficiently close connection requires a value judgment to be made in the particular circumstances about whether the employee’s wrongdoing was sufficiently connected to the employment.

Facts: On 15 March 2008 Mr Mohamud, a man of Somali origin stopped at a petrol station, which had a Morrisons supermarket attached to it. The premises were owned by Morrisons. A kiosk was manned by Mr Khan, a Morrisons employee, whose job it was to serve customers and see that the petrol pumps and the kiosk were kept in good running order.

Mr Mohamud went into the shop to ask if it would be possible to print some documents form a USB stick he was carrying. Mr Khan, once of three members of staff on duty at the time, replied in expletive terms that it was not. He was ordered to leave and subjected to offensive and racist language. Following this exchange, Mr Mohamud returned to his car and was about to drive off when Mr Khan pursued him, opened the passenger car door and told Mr Mohamud never to come back to the petrol station. When Mr Mohamud told Mr Khan to get out of the car, Mr Khan punched him in the face. Mr Mohamud got out of the car to shut the passenger door but Mr Khan attacked him further, refusing to hear calls from his supervisor to stop the unprovoked attack.

Mr Mohamud brought a personal injury claim for the assault against Morrisons and the issue arose as to whether the supermarket was vicariously liable for Mr Khan’s violent acts. The first instance court and the Court of Appeal both found that Morrisons was not vicariously liable as the close connection test was not met. On appeal, the Supreme Court overruled, finding that there was a sufficiently close connection between the assault and the employee’s job of attending to customers, such that the employer should be held vicariously liable.

Decision: The Supreme Court ruled unanimously that the acts of Mr Khan were sufficiently connected to his employment and that it would be in the interests of justice that Morrisons should be vicariously liable for the acts of their employee. Lord Toulson gave the leading judgment.

The test in Lister remains good law

Counsel for Mr Mohamud submitted that a new test of vicarious liability should be formulated into a ‘representative capacity’ test. The Supreme Court, however, could see no basis for substituting the Lister test with a ‘representative capacity’ test. Essentially the Lister test remains good law. Lord Toulson’s judgment suggested that any change from the ‘sufficient connection’ test would be mere semantics. In any case, the imprecision of the Lister test was inevitable since an evaluation was required as to the proximity of connection based on the circumstances.

The Supreme Court considered the origin of the principle of vicarious liability and acknowledged that it is partly made up of jurisprudence but to a large extent is driven by social policy considerations. Early cases established vicarious liability where the employee was authorised to do the acts complained of, or even was carrying out authorised acts in a way which had not been authorised. This reason was set out in the academic textbook, Salmond and Heuston on the Law of Torts. Lord Dyson made an interesting observation in relation to how the Salmond formula ought to be interpreted:

“The importance of Lister….is that it recognised the difficulty created by the second limb of the Salmond test. This was not effective for determining the circumstances in which it was just to hold an employer vicariously liable for committing an act not authorised by the employer. The close connection test was introduced to remedy this shortcoming. This improvement was achieved by the simple expedient of explicitly incorporating the concept of justice into the close connection test.”

Violence and the connection to employment

It is entirely in the interests of justice for the Supreme Court to have concluded that violence was closely connected to the employment. Mr Khan’s job was to attend to customers and respond to their enquiries. The violent conduct occurred during the course of Mr Khan undertaking his duties as an employee at Morrisons. In fact, it took place subsequent to Mr Khan telling Mr Mohamud never to come back to his employer’s premises. Contrary to Morrison’s submissions, the fact that Mr Khan come out of the kiosk did not break the close connection with Mr Khan’s duties. Effectively, he had not taken off his Morrison’s employee ‘hat’ to pursue a personal matter. Whilst it was clearly a gross abuse of his position, the violence which took place was carried out in connection with the business of serving customers. Further, it was fair that Morrisons should be responsible for the abuse of position.

Comment: This case is illustrative of the broad approach the courts are prepared to take in order to establish close connection and where appropriate find employers vicariously liable.