Vicarious liability: further concern for employers

The Supreme Court has recently handed down two complementary decisions which will be of concern to employers. In both cases, the employers were held vicariously liable for the acts of others.

In Cox v Ministry of Justice, the court considered the nature of the relationship between the defendant and the wrongdoer, who was not an employee. In Mohamud v WM Morrison Supermarkets the court considered the nature of a wrongful act by an employee and whether the connection between that act and his employment was so close as to impose liability on the employer.

Facts
In Cox, a catering manager of a prison, Mrs Cox, was injured when a prisoner working in the prison dropped a 25kg sack of rice on her. She brought a claim against the Ministry of Justice (MoJ). The County Court found the prisoner negligent but held that the MoJ was not vicariously liable for his actions. The Court of Appeal allowed Mrs Cox’s appeal and the MoJ appealed to the Supreme Court.

In Mohamud Mr Mohamud stopped at a Morrisons petrol station and asked if he could print some documents from a USB stick. Mr Khan, a Morrisons employee, replied in an abusive and threatening way and ordered Mr Mohamud off the premises amid a series of racial slurs. When Mr Mohamud returned to his car, Mr Khan followed him, opened the passenger door and punched him in the head. Mr Mohamud proceeded to get out of the car to shut the passenger door and Mr Khan advanced, punching and kicking him.

Decisions
The Supreme Court in Cox dismissed the appeal, holding the MoJ vicariously liable for the injury to Mrs Cox. The Court confirmed that, in order to establish that there is a relationship between the wrongdoer and the defendant which is capable of establishing vicarious liability, there should be a right for the defendant to direct what the wrongdoer does (rather than how they do it). Although the prisoner was not an employee, he was working in the prison and was carrying out a task for the defendant’s business.

The Court confirmed that it is possible to establish a situation giving rise to vicarious liability outside of a conventional employment relationship provided that:

  • the wrongdoer was carrying out tasks for the benefit of the defendant as an integral part of its business
  • the risk of the wrong being committed was caused by the defendant assigning those tasks to the wrongdoer.

The MoJ’s business was to run a prison and to provide work for its prisoners and it was held the wrongdoer’s actions were integral to that.

In Mohamud, the Court found that the acts of Mr Khan were sufficiently connected to his employment that it was just and reasonable to impose liability on Morrisons. It confirmed a broad approach is required when establishing the scope of employment but recognised that the time and place at which acts occur will not always be conclusive. While being employed may allow the wrongdoer to be at a particular place and enable them to commit the act, it does not automatically mean the act itself is within the scope of employment.

In this case, the Court held that the attack on Mr Mohamud was in connection with the business of serving customers, meaning that there was a sufficient connection between the employment and the wrongful conduct to make it just and reasonable that Morrisons should be held accountable.

Comment
Many employers will be surprised and alarmed by these decisions, particularly Mohamud, given the apparent distance between the employee’s normal duties and his extreme actions towards the customer. 

Inevitably, cases of this type will always be determined on their own facts but these two cases will remind employers of the importance of communicating standards of conduct and behaviour to those who do work for them, regardless of their employment status. Even then, these cases highlight the practical difficulty that employers face in distancing themselves from the acts of those who work for them.

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Lloyd Davey

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