Supreme Court revisits the law on vicarious liability

In the conjoined cases of Cox v Ministry of Justice and Mohamud v WM Morrison Supermarkets plc, the Supreme Court had to consider two aspects of vicarious liability.  Firstly, whether an employment relationship is necessary for vicarious liability to apply and secondly, whether an employer can be held liable for the criminal acts of its employees.

In Cox, the claimant was a catering manager at HM Prison Swansea.  She was injured when one of the prisoners dropped a 25kg sack of rice on her back.  She brought a claim for personal injury against the MoJ claiming that it was vicariously liable for the acts of the prisoners notwithstanding that they are not employees.  The Supreme Court, finding in favour of the claimant, held that vicarious liability could arise in a non-employment relationship provided the wrongdoer carried on activities integral to the employer’s business and the employer had created the risk of harm by assigning these activities to the wrongdoer.

In Mohamud, an employee of Morrison’s (working at one of their petrol stations) racially abused the claimant after he asked for assistance.  The employee ordered the claimant to leave and then followed the claimant to his car and physically assaulted him.  The claimant brought a personal injury claim against Morrison’s relying on the principles of vicarious liability.  The issue for the courts to decide here was whether there was a sufficiently close connection between the employee’s acts and their employment.   The Court of Appeal determined that there was not, stating that the mere fact of authorised contact between the parties would not fix the employer with vicarious liability.  However, the Supreme Court overturned this decision and found in favour of the claimant.  It found that the act complained of was sufficiently connected to the ‘field of activities’ entrusted to the individual (such field to be construed broadly) to make it right for the employer to be held liable under the principle of social justice.  Whilst the employee’s conduct was ‘inexcusable’ the Supreme Court felt that his conduct when responding to the Claimant’s request for help was within the field of activities assigned to him, i.e. to attend to customers and respond to their enquiries.  The Supreme Court said that what followed was an ‘unbroken sequence of events’ and it would not be right to regard the employee as having ‘metaphorically taken off his uniform the moment he stepped from behind the counter’.  It drew attention to the fact that throughout the attack, the employee was giving an order for the claimant to leave and, in giving such an order, was purporting to act about his employer’s business.

The cases do not significantly change the existing law in this area but rather shed further light on how the legal tests should be applied.  This being said, it is likely that many will find the Mohamud ruling, in particular, surprising given the remote link between the act and the employee’s job role.  In light of these cases, employers should bear in mind the potential difficulty in distancing themselves from the actions of employees and other workers and should ensure that they clearly communicate and enforce the standards expected from those working for them regardless of whether or not they are employees.