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Vicarious liability: Assault by employee

Mohamud v WM Morrison Supermarkets PLC
13.2.14
Court of Appeal

The Court of Appeal considered whether a Claimant should recover against an employer after he was subject to an assault by one of its employees.  Andrew Cousins reviews this decision in which the Court reiterated the correct test that should be applied when deciding whether an employer is vicariously liable in instances such as these. 

Facts

The Claimant was a visitor to the Defendant’s petrol station. Having entered the kiosk and asked the Defendant’s employee for facilities to print some documents, the Defendant’s employee, Mr Khan, verbally abused the Claimant. The Claimant left the kiosk but was followed by Mr Khan who physically assaulted him.

The Claimant brought a claim against the Defendant arguing that it was vicariously liable for the actions of its employee, Mr Khan, and thus liable for the injuries the Claimant sustained. 

The first instance Judge found that the attack was brutal and unprovoked but found that the Defendant was not vicariously liable for the actions of Mr Khan and dismissed the claim. The Claimant appealed to the Court of Appeal.

The issue on appeal concerned the connection between the assaults and the employment. It was the Claimant’s case that by virtue of entering the shop, interacting with an employee, (who is representing the company’s brand and standards) and then by being assaulted, this satisfied the connection needed and rendered the Defendant vicariously liable.

Appeal Findings

Arden LJ, Treacy LJ and Christopher Clarke LJ dismissing the Claimant’s appeal held:

  • The Judge at first instance had applied the correct test when he came to establish whether the Defendant might be vicarious liability and as set out in Lister v Hesley Hall Ltd [2002] UKHL 22 [2002] 1 AC 215, namely:

  • the nature of the relationship between the primary wrongdoer and the person alleged to be liable and whether that relationship could give rise to vicarious liability; and

  • secondly, whether there was a sufficiently close relationship between the wrongdoing and the employment so that it would be fair to make the employer vicarious liable for the wrongdoer’s actions.

    • The Claimant clearly satisfied the first limb of the test: Mr Khan was employed by the Defendant.

    • On the second part of the test the fact that assault took place at the employee’s place of work, whilst the employee was on duty was relevant but not conclusive; a greater connection between the tort and the circumstances of employment is required.

    • The connection between the tort and the employee’s duties had to be viewed in the round. In Mr Khan’s case his duties of employment did not extend to keeping control or order in the kiosk, which would potentially bring him in to conflict with customers (so his employment was not at all like persons such as doormen who were required to keep order at their employer’s premises - see Mattis v Pollock (t/a Flamingos Nightclub) [2003] EWCA Civ 887).  The employee’s work in the kiosk carried no special risk of violence being used against customers and in this case there was no close connection between the wrongful act and what the employee was required to do.

    • The fact that the employment provided the opportunity, setting, time and place, for the tort to take place is not necessarily sufficient to justify a finding of liability.

Comment

It is important to recognise that this was a very fact sensitive case, but had the Claimant succeeded on the appeal the resulting judgment would have widened the scope for vicarious liability and increased the exposure of employers to include acts that could be totally unforeseeable.

The Court favoured the Defendant’s argument that, in the absence of an additional factor of employment, such as requiring the employee to keep order and control, the Defendant was not vicariously liable for the acts of the employee.

The Court of Appeal repeated the comments of Lord Neuberger in Maga v Archbishop of Birmingham (2010) EWCA Civ 256 and stated that the Court should not be too ready to impose vicarious liability and its application should be reasonably circumscribed.

The scope of vicarious liability remains limited at present and, whilst the Court did state that the law had not yet (emphasis added) reached a stage where an employer may be held liable for incidents such as this, the Court did indicate that it may have cause to revisit its approach in the future and examine whether the scope should be widened.

Contact

For further information please contact Andrew Cousins, Solicitor Advocate, Insurance on 0161 603 5093.

By Andrew Cousins

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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