By Prof Paula Giliker, Professor in Comparative Law (University of Bristol Law School).
“To search for certainty and precision in vicarious liability is to undertake a quest for a chimaera”: Lord Dyson (Mohamud)
On 2 March 2016, the Supreme Court delivered two judgments which it described as “complementary to each other” on the controversial topic of vicarious liability in tort. Vicarious liability imposes strict liability on an employer for the wrongful actions of (usually) its employees which are committed in the course of his or her employment. Recently, however, as Lord Phillips (former President of the Supreme Court) stated in the case of Various Claimants v Catholic Child Welfare Society  UKSC 56 (“the Christian Brothers case”), “the law of vicarious liability is on the move.” Since 2001, it has been an area of law subject to expansion. The question on appeal to the Supreme Court was essentially how far this expansion would go, examining, in particular:
- The relationship needed to give rise to vicarious liability. This was examined in Cox v Ministry of Justice  UKSC 10.
- The manner in which the wrongful acts of the employee have to be related to the relationship giving rise to vicarious liability – in other words, were the employee’s torts so closely connected with his employment that it would be just to hold the employers liable? This was examined in Mohamud v WM Morrison Supermarkets plc  UKSC 11.
Both judgments are short and unanimous. Neither claim, however, to provide absolute tests, taking the view that a lack of precision is inevitable, given the infinite range of circumstances where the issues arise.
Cox v Ministry of Justice  UKSC 10
Cox is perhaps the less controversial case of the two, bearing in mind recent decisions such as the Christian Brothers case in which the Supreme Court made clear that relationships giving rise to vicarious liability would extend beyond the formal contract of employment to relationships “akin to employment”. In this case, Mrs Cox (a catering manager at HM Prison Swansea) had been working in the prison kitchen with a catering assistant and about 20 prisoners. During the course of a delivery of kitchen supplies, one prisoner (Mr Inder) had negligently dropped a sack of supplies on Mrs Cox’s back, causing her injury. Prison authorities are legally required to offer work to prisoners and prisoners may apply to be selected to work within the prison kitchen for which they receive a nominal wage and training. Were they, however, akin to employees giving rise to vicarious liability for their misconduct?
Lord Reed, giving judgment for the court, agreed with the Court of Appeal that it was “just and reasonable” to hold the prison vicariously liable for an injury to a catering manager caused by the negligence of a prisoner working in the prison kitchen. It was irrelevant that the prison service is a public authority performing statutory functions for the public benefit.
“Prisoners working in the prison kitchens, such as Mr Inder, are integrated into the operation of the prison, so that the activities assigned to them by the prison service form an integral part of the activities which it carries on in the furtherance of its aims: in particular, the activity of providing meals for prisoners. They are placed by the prison service in a position where there is a risk that they may commit a variety of negligent acts within the field of activities assigned to them … Furthermore, they work under the direction of prison staff. Mrs Cox was injured as a result of negligence by Mr Inder in carrying on the activities assigned to him. The prison service is therefore vicariously liable to her”: .
In making this decision, Lord Reed paid particular attention to the factors identified as significant by Lord Phillips in the Christian Brothers case:
“The result of this approach is that a relationship other than one of employment is in principle capable of giving rise to vicarious liability where harm is wrongfully done by an individual who carries on activities as an integral part of the business activities carried on by a defendant and for its benefit (rather than his activities being entirely attributable to the conduct of a recognisably independent business of his own or of a third party), and where the commission of the wrongful act is a risk created by the defendant by assigning those activities to the individual in question”: .
The result in Cox is, in his Lordship’s view, not a major development of the common law, but a logical conclusion arising from the Christian Brothers case.
Mohamud v WM Morrison Supermarkets plc  UKSC 11
Mohamud is, arguably, the more important case and yet one in which the Court focused more on legal history than policy (in contrast to Lord Reed above). The case involved an assault on the claimant, who, while at a Morrison petrol station, had decided to enquire at the kiosk whether it would be possible to print some documents from a USB stick he was carrying. Mr Khan, working at the kiosk, told him in no uncertain terms: “We don’t do such shit”. Khan then followed the claimant out into the forecourt, told him in threatening words never to come back and then attacked him. The question for the court was whether such actions were “closely connected” to Khan’s employment by Morrison Supermarkets.
The court unanimously found that it was. Lord Toulson, giving the main judgment, explained the test of “close connection” as follows:
“The first question is what functions or “field of activities” have been entrusted by the employer to the employee, or, in everyday language, what was the nature of his job. As has been emphasised in several cases, this question must be addressed broadly … Secondly, the court must decide whether there was 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 under the principle of social justice”: -.
Applying this test to the facts of the case:
“In the present case 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 thereafter was an unbroken sequence of events. It was argued by the respondent and accepted by the judge that there ceased to be any significant connection between Mr Khan’s employment and his behaviour towards the claimant when he came out from behind the counter and followed the claimant onto the forecourt. I disagree for two reasons. First, I do not consider that it is right to regard him as having metaphorically taken off his uniform the moment he stepped from behind the counter. He was following up on what he had said to the claimant. It was a seamless episode. Secondly, when Mr Khan followed the claimant back to his car and opened the front passenger door, he again told the claimant in threatening words that he was never to come back to petrol station. This was not something personal between them; it was an order to keep away from his employer’s premises, which he reinforced by violence. In giving such an order he was purporting to act about his employer’s business. It was a gross abuse of his position, but it was in connection with the business in which he was employed to serve customers. His employers entrusted him with that position and it is just that as between them and the claimant, they should be held responsible for their employee’s abuse of it”: .
There are a number of reasons why this is controversial. First, the Court treats Mr Mohamud as a customer making a reasonable enquiry at the kiosk. Yet, the claimant was not at the kiosk to purchase petrol; he had merely checked his tyre pressure on the forecourt. This was enough to render him a “customer”, even though his enquiry was unrelated to this activity and did not involve a service Morrison Supermarkets provided. Would, one might wonder, it have made a difference if he had gone to the kiosk to ask for directions to the Post Office or had yet to (or was even debating whether to) check his tyre pressure?
Secondly, it might be seen as odd to hold that “this was not something personal between them” when the employee was engaged in an unprovoked racist assault. Was his primary concern really to keep Mr Mohamud away from his employer’s premises at the time?
At the very least we can see how important it is how the court analyses the facts. In stressing Mr Mohamud’s customer status, Mr Khan’s mention in passing of his employer’s business, and the fact that Mr Khan was wearing the Morrison uniform when he attacked Mr Mohamud, the Supreme Court was able to identify facts which indicated a close connection. Compare, however, the trial judge’s findings that the duties imposed on Mr Khan in his interaction with customers were relatively limited, involved no element of authority over them, or responsibility for keeping order and that his actions were not in any way motivated to advancing the employer’s interests, but instead took place “purely for reasons of his own”. Much will depend, therefore, on how the court characterises the facts of the case.
It is unfortunate, also, that Lord Toulson does not examine the basis for extending vicarious liability in this way, save for commenting that it is based on public policy, noting that “the risk of an employee misusing his position is one of life’s unavoidable facts” . The claimant’s argument for a new test for course of employment based on the “representative capacity” of the employee is dismissed as “hopelessly vague”: . The search for a clearer version of the ‘close connection’ test is deemed pointless. We are left, therefore, with the view that fairness and justice requires a broad interpretation of this test (Lord Toulson uses variants of the term ‘broad’ 11 times). Lord Reed in Cox adopts a more principled approach, but ultimately agrees that it is a fact of life that “anyone who employs others to carry out activities is likely to create the risk of their behaving tortiously within the field of activities assigned to them”: .
On this basis, vicarious liability continues to expand, placing strict liability on innocent employers for the tortious actions of their employees and quasi-employees. The “course of employment” test – which, it should be remembered, exists to limit the scope of vicarious liability – continues to be interpreted broadly. As Lord Reed states in Cox at , “The law of vicarious liability is on the move … It has not yet come to a stop.”