Supreme Court considers vicarious liability for employees’ actions

The Supreme Court has unanimously decided that WM Morrison Supermarkets plc is vicariously liable for the actions of its employee, following an attack on a customer.

Facts

In March 2008 Mr Mohamud visited one of Morrisons’ petrol stations in Birmingham to see if he could print some documents. One of Morrisons employees, Mr Khan, refused the request in a rude fashion. Mr Mohamud objected to being spoken to in such a way. As a result Mr Khan ordered him to leave the premises using foul, racist and threatening language. Mr Khan then followed Mr Mohamud to his car and opened the passenger door and told him, using threatening words, to never return and punched him in the head.  Mr Mohamud got out of his car (to close the passenger door) and Mr Khan subjected him to a serious attack on the forecourt.  Mr Mohamud had not acted or spoken in an aggressive or abusive manner.

Claim

Employers are liable for torts (civil (as opposed to criminal) liability for breach of obligations imposed by law) committed by an employee under a legal concept of known as vicarious liability where there is a sufficient connection between the employment and the wrongdoing.

Mr Mohamud brought a personal injury claim against Morrisons on the basis that it was vicariously liable (i.e. responsible) for the actions of its employee, Mr Khan, in respect of the unprovoked assault.

The trial judge dismissed the claim because he considered that there was not a sufficiently close connection between what Mr Khan was employed to do and his conduct for Morrisons to be vicariously liable. A further point was that Mr Khan made a positive decision to follow Mr Mohamud to his car in contravention of instructions given to him

Mr Mohamud appealed to the Court of Appeal and it was decided that vicarious liability was not established since the ‘close connection’ test was not met. The Court of Appeal considered it key that Mr Khan’s duties did not involve a clear possibility of confrontation nor did his duties place him in a situation where an outbreak of violence was likely.

Mr Mohamud appealed to the Supreme Court. He challenged whether the ‘close connection’ test was appropriate and argued that a new test of vicarious liability should be formulated also that his claim should succeed.

Decision

The Supreme Court unanimously allowed Mr Mohamud’s appeal and held Morrisons to be vicariously liable for the actions of its employee, Mr Khan, in attacking Mr Mohamud.

In cases such as this the court had to consider two matters. First, what function or field of activities have been entrusted to the employee (i.e. what was the nature of his job).  This is to be considered in a broad context.  Second, whether there is a sufficient connection between the position in which he was employed and his wrongful conduct for it to be just for the employer to be liable.

Applying the test here, interacting with customers was within the field of activities and there was an “unbroken sequence of events” culminating in the attack on the forecourt.  This was referred to being a “gross abuse of [Mr Khan’s] position … in connection with the business in which he was employed to serve customers”.

It therefore held that Mr Khan’s acts were sufficiently connected to his employment for it to be just that Morrisons should be vicariously liable for his acts.

Lord Toulson commented that Mr Khan’s motive was irrelevant and it did not matter if he was motivated by personal racism rather than a desire to benefit.

Lord Dyson also commented that the ‘close connection’ test is the correct test to apply.

Comment

This case is a reminder that employers can be vicariously liable for the acts of their employees. The case also illustrates the broad approach that the courts take to the ‘close connection’ test and employers should be mindful of potential liabilities.

Victoria Willson, Partner, Michael Simkins LLP

9 March 2016