Supreme Court reviews the scope of vicarious liability
News | Thu 3rd Mar, 2016
Sarah Hunwick reviews the Supreme Court judgments in the cases of:
Cox (Respondent) v Ministry of Justice (Appellant)  UKSC 10 and Mr A Mohamud (in substitution for Mr A Mohamud (deceased)) (Appellant) v WM Morrison Supermarkets Plc (Respondent)  UKSC 11.
‘The law of vicarious liability is on the move’ commented Lord Phillips in the case of Various Claimants v Catholic Child Welfare Society  UKSC 56 (‘the Christian Brothers Case’). According to the Supreme Court yesterday, ‘it has not yet come to a stop’.
The two separate appeals of Cox and Mohamud were heard alongside each other last October. Both cases concerned claimants injured by the tortious actions of ’employees’ of the defendants. The Supreme Court handed down judgments on 2 March 2016 and have taken the opportunity to review the legal principles of vicarious liability.
As both Lord Toulson and Lord Reed remind us at the start of these ‘complementary’ judgments, vicarious liability in tort requires two things:
- A relationship between the defendant and the wrongdoer; and
- A connection between that relationship and the wrongdoer’s act, such as to make it just that the defendant should be held legally responsible.
The appeal in Cox is concerned with the first requirement, whereas the appeal in Mohamud deals with the second.
Facts Of Cox v MOJ
Ms Cox worked as the catering manager at HM Prison Swansea. She was in charge of the day to day aspects of catering at the prison, including the operation of the kitchen. She was in charge of four members of staff. There were also around 20 prisoners who worked in the kitchen under her supervision. On 10th September 2007, Ms Cox had instructed four prisoners to take a delivery of supplies upstairs to the kitchen stores. One of the prisoners dropped a sack of rice on the floor which split open. Ms Cox bent over to prop it up and prevent further spillage. Whilst she was doing this another prisoner, Mr Inder, lost his balance and dropped another sack on to Ms Cox’s back causing her injury.
At first instance the trial judge found that Mr Inder had been negligent but dismissed the claim on the basis that the prison service was not vicariously liable for his actions. He had focused on the question of whether the relationship between the MOJ and Mr Inder was akin to that of employer and employee, and concluded it was not because the work was not undertaken as a ‘voluntary enterprise’ but due to ‘penal policy’.
The Court of Appeal allowed an appeal against that decision and found that the work performed by the prisoners in the kitchen was essential to the functioning of the prison and therefore done on its behalf and for its benefit. ‘In short, the prison service took the benefit of this work, and there was no reason why it should not take its burdens’. The MOJ appealed to the Supreme Court.
Decision In Cox v MOJ
The Supreme Court unanimously dismissed the MOJ’s appeal with lead judgment given by Lord Reed. He gives a helpful overview of the approach to be taken when deciding whether a relationship other than one of traditional employment can give rise to vicarious liability and repeats the five factors that usually make it ‘fair, just and reasonable’ to impose vicarious liability on the employer as set out at paragraphs 35 and 47 of Lord Phillips’ judgment in the Christian Brothers Case. The first factor (that the defendant is more likely to have the means to compensate the victim and can be expected to have insured against that liability) is ‘unlikely to be of independent significance in most cases’. The fifth factor (that the tortfeasor will have been under the control of the defendant) ‘no longer has the significance that it was sometimes considered to have in the past’. The other three factors are inter-related, these being: 1) the tort will have been committed as a result of activity being taken by the tortfeasor on behalf of the defendant, 2) the tortfeasor’s activity is likely to be part of the business activity of the defendant’ and 3) the defendant, by employing the tortfeasor to carry on the activity, will have created the risk of the tort committed by the tortfeasor.
The MOJ argued that the relationship between the prison services and the prisoners was fundamentally different from that between a private employer and its employees, as requiring prisoners to work serves the purpose of rehabilitation and the prisoners have no interest in furthering the objectives of the prison service. The Supreme Court rejected these arguments, finding that rehabilitation is not the sole objective and that penal policy is also aimed at prisoners contributing to their upkeep. By working in the prison kitchen, prisoners are integrated into the operation of the prison and their activities directly benefit the prison service. The fact that a prisoner is required to work and is paid nominal wages (Mr Inder was paid £11.55 per week), ‘binds him into a closer relationship with the prison service than would be the case for an employee’ and actually strengthens the case for vicarious liability. The prison service selects these prisoners and then places them in a position where there is a risk they may commit a negligent act (as recognised by the provision of health and safety training). In conclusion, Ms Cox was injured as a result of Mr Inder’s negligence when carrying on activities assigned to him and therefore the prison service is vicariously liable to her.
The MOJ argued that if the appeal were allowed, there would be a host of similar claims arising from other activities undertaken by prisoners with a view to their rehabilitation (e.g. educational classes or offending behaviour programmes) and a risk of fraudulent claims being made for prisoner on prisoner incidents. It may also lead the prison service to adopt an unduly cautious approach to the types of tasks prisoners are given the opportunity to do, due to the potential impact on limited financial resources. The Supreme Court rejected these arguments as tenuous and speculative, but it remains to be seen how the prison service will react to the judgment and whether the ‘floodgates’ have been opened.
Facts Of Mohamud v Morrisons
On 15 March 2008, the claimant (who died of an unrelated illness before the appeal was heard) visited a Morrisons petrol station in Small Heath, Birmingham. He went into the kiosk and asked the member of staff working behind the counter, Mr Khan, if it would be possible to print some documents from a USB stick. Mr Khan reacted rudely and the claimant protested. Mr Khan then responded using foul, racist and threatening language and told the claimant to leave. Mr Mohamud returned to his car but before he could drive away Mr Khan opened the passenger door and punched him to the head. Mr Mohamud got out of his car to close the passenger door. Mr Khan then subjected him to a serious attack, which involved punches and kicks whilst the claimant lay on the floor trying to his protect his head.
The trial judge fully accepted the claimant’s account of what had happened and expressed great sympathy for him, but concluded that Morrisons were not vicariously liable. He found that although Mr Khan’s job involved some interaction with customers, there was not a sufficiently close connection between what he was employed to do and his unprovoked assault on Mr Mohamud, applying the ‘close connection’ test as laid down in Lister v Hesley Hall Ltd  1AC 215. The trial judge also found that Mr Khan had decided to come out from behind the counter and follow the claimant onto the forecourt, contravening instructions given to him by a supervisor.
The Court of Appeal upheld the trial judge’s decision. Mr Mohamud appealed to the Supreme Court, challenging whether the ‘close connection’ test was the appropriate standard to apply and also that his claim should have succeeded in any event as Mr Khan was acting within the field of activities assigned to him in dealing with a customer.
Decision In Mohamud v Morrisons
The Supreme Court unanimously allowed the appeal with Lord Toulson giving the lead judgment. Paragraphs 10 to 38 of his judgment give a comprehensive history of the origins of vicarious liability and he reviews previous authorities up to and including the case of Lister, in which the House of Lords set out the ‘close connection’ test. Lister concerned a warden of a boarding house who had sexually abused the children in his care. The House of Lords found it was just to hold the employers vicariously liable because the warden’s torts were so closely connected with his employment and the fact that he had abused the children in his care did not severe that connection. Lord Toulson then goes on to review cases at the highest level that have applied the ‘close connection’ test since Lister and determined that there is nothing wrong ‘with the Lister approach as such’. Re-stating the test in the simplest terms, the court has to consider two matters. Firstly, what function or field of activities has been entrusted by the employer to the employee? (i.e. what was the nature of his job?). This is to be addressed broadly. Secondly, was there a sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable?
Applying the test to the facts of Mohamud, it was Mr Khan’s job to attend to customers and to respond to their queries. Mr Khan’s conduct when answering the claimant’s request using foul language and ordering him to leave was inexcusable but interacting with customers was within the field of activities assigned to him by his employer. What happened thereafter was ‘an unbroken sequence of events’. The connection did not cease the moment he stepped out from behind the counter, as advanced by Morrisons, for two reasons. Firstly, the Court found that Mr Khan had not ‘metaphorically taken off his uniform’ at that point and he was actually following up on what he had said to the claimant when inside the kiosk. Secondly, when Mr Khan told the claimant in a threatening manner to never return to the petrol station, this was not something personal between them but an order to keep away from his employer’s premises, which he then reinforced through violence. This was a ‘gross abuse’ of his position, but it was in connection with the business in which he was employed to serve customers. Morrisons entrusted him with that position, and it is therefore just that they should be held responsible for their employee’s abuse of it. Mr Khan’s motive for the attack was irrelevant.
At first glance, it may appear that the Supreme Court has widened the scope of the vicarious liability by making it easier for claimants to sue employers for assaults carried out by their employees. However, each case will still be fact specific and the legal test to apply is still the ‘close connection’ test.