50 Predictions: Casualty
Making predictions about the future of the insurance market is not for the faint-hearted…
Published 15 April 2016
In this case, the Supreme Court considered whether an employer was vicariously liable for an employee's unprovoked and violent assault on a customer. It also considered whether the test for vicarious liability should be changed.
Employers will be vicariously liable for civil wrongs committed by an employee where there is a sufficient connection between the employment and the wrongdoing. There is a two-stage test:
The Supreme Court here considered the second part of this test – sometimes referred to as the "close connection" test. The first was considered in another case handed down on the same day (see Cox v Ministry of Justice).
Mr Mohamud, a man of Somali origin, stopped at a Morrisons petrol station. Mr Khan, a Morrisons employee, manned the kiosk, and it was his job 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 and Mr Khan swore at him in response. When Mr Mohamud objected to being sworn at Mr Khan ordered Mr Mohamud to leave, using foul and racist language.
Mr Mohamud left the shop, 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 head. Mr Mohamud got out of the car to shut the passenger door but Mr Khan attacked him further, punching and kicking him to the ground. In carrying out the attack, Mr Khan ignored the instructions of his supervisor, who tried to stop him pursuing Mr Mohamud and attacking him.
Mr Mohamud brought a personal injury claim for the assault against Morrisons and the issue arose as to whether it was vicariously liable for Mr Khan's violent acts. The court held that Morrisons was not vicariously liable and Mr Mohamud eventually appealed to the Court of Appeal. The Court decided that vicarious liability was not established since the close connection test was not met. The Court had regard to the fact that Mr Khan's job duties did not involve the clear possibility of confrontation, or place him in a situation where an outbreak of violence was likely.
Mr Mohamud appealed to the Supreme Court. He argued that a new test of vicarious liability should be formulated, using a "representative capacity" test of whether a reasonable observer would consider the employee to be acting in the capacity of a representative of the employer at the time of committing the tort.
The Supreme Court allowed the appeal. It applied the following two tests:
It was Mr Khan's job to attend to customers and to respond to their inquiries. His conduct in answering the claimant's request in a foul mouthed way and ordering him to leave was inexcusable, but within the "field of activities" assigned to him. What happened afterwards was an unbroken series of events, and Mr Khan's motive – i.e. he was clearly not activated by a desire to benefit his employer's business – was irrelevant.
The Court said that there was no basis for creating a "representative capacity" test. The current test was imprecise, but lack of precision was inevitable given the infinite range of circumstances where the issue of vicarious liability arises.
This is not a change of law. However, it does show how broad an approach courts are taking to the "close connection test." There was a risk in attempting to lay down criteria for determining what precisely amounted to a sufficiently close connection to make it just for an employer to be held vicariously liable. A simplification is more desirable, and in its simplest terms, two matters have to be considered: (a) What functions had been entrusted by the employer to the employee (which has to be addressed broadly), and (b) whether there is sufficient connection between the employee's wrongful conduct and the position in which he was employed to make it right for the employer to be fixed with vicarious liability.
Employers should also consider with care the issue of whether liability has been assumed for the actions (or failings) of non-employees, particularly when contracting out activities, as this may leave employers exposed to liability in circumstances over which they have little or no control. In commercial settings, consideration should be given to obtaining suitable indemnities and ensuring that contractors arrange an adequate level of public liability cover.