Nicola_Waghorn_phThe Supreme Court has unanimously allowed the claimant’s appeal in this case and held the respondent supermarket vicariously liable for an attack that one of its employees subjected the claimant to whilst on duty at one of the respondent’s petrol stations. Whilst the Supreme Court overturned the decision of the Court of Appeal on the facts, it did affirm the traditional ‘close connection’ test for vicarious liability advocated by both the Court of Appeal and the trial judge in this matter.

Background to the Supreme Court decision

The case concerned the actions of Mr Khan, an employee of the respondent, who verbally abused the claimant when he asked if he could print some documents he had stored on a USB stick. Following the verbal attack the claimant left the petrol station kiosk but was followed by Mr Khan who launched a serious attack on the claimant, punching and kicking him, telling him never to return to the premises again.

The trial judge dismissed Mr Mohamud’s claim against Morrison’s, applying the test in Lister v Hesley Hall Ltd [2001] UKHL 22, which established that for vicarious liability to be found there must be a sufficiently close connection between the wrongdoing and the employment, so that it would be fair and just to hold the employer vicariously liable for the employee’s actions. On the facts the trial judge found there was an insufficiently close connection between what the employee was employed to do, namely serving customers and seeing that the premises were kept in good working order, and the wrongdoing, being his actions in attacking the claimant.

The Court of Appeal upheld the first instance decision, following the reasoning of the trial judge. The court contrasted the facts of this case with others where a ‘close connection’ had been found; this included cases involving doormen where the duties of the employee gave a clear possibility of confrontation, as opposed to the present case where the duties were more benign in nature.

The claimant appealed arguing that there was a need for a new vicarious liability test involving “representative capacity” and that the claim should have succeeded in any event.

Supreme Court decision and legal analysis

After outlining the historic development of the law of vicarious liability, Lord Toulson, giving the lead judgment, endorsed the current ‘close connection’ test. In doing so he further examined the test, breaking it down into two factors to be analysed when considering whether vicarious liability could be established.

Firstly, the court must ask what ‘field of activities’ had been entrusted to the employee or, more simply, what was the nature of the job the employee was employed to do? This was a question which was to be answered broadly. Secondly, it had to consider whether there was a sufficient connection between the position in which the employee was employed and his wrongful conduct in order to make it right for the employer to be held liable under the “principles of social justice”.

In endorsing and adding further clarity to what was meant by ‘close connection’, the court held that the test in Lister remained correct, and that any change in vocabulary, argued as being necessary by the claimant, would neither add anything to the law, nor improve the test which had been “affirmed many times”.

Applying the Lister test to the facts Lord Toulson found that whilst the employee’s conduct, in rudely responding to the claimant and subsequently attacking him, was “inexcusable” it was within the “field of activities” assigned to the employee, to attend to customers and to respond to their enquiries. It was deemed to be irrelevant that the employee’s actions were a gross abuse of his position, as was his motive for them. Emphasis was also placed on the fact that the events were unbroken and seamless; there was the verbal altercation in the kiosk followed immediately by the employee’s assault on the claimant in the forecourt. The respondent had previously argued that there ceased to be a connection between the employment and the behaviour of the employee when Mr Khan exited the kiosk and followed the claimant to the forecourt. However the Supreme Court found this distinction artificial, holding it was not right to consider the employee as having “metaphorically taken off his uniform the moment he stepped from behind the counter”. By following the claimant onto the forecourt Mr Khan was following up on what he had previously said to the claimant. Furthermore, weight was also placed on the employee’s actions in following the claimant on to the forecourt and telling him, using threatening language, to never come to the premises again. This was not something personal between the employee and the customer; he was ordering the claimant to keep away from his employer’s premises and in doing so was purporting to act in furtherance of his employer’s business.

Whilst the actions of the employee were a gross abuse of his position they were, nevertheless, in connection with the business in which he was employed. The employer had entrusted Mr Khan with that position and it was therefore just that they should be held responsible for his subsequent abuse of that position. It was also irrelevant that the motive behind the attack appeared to be the employee’s personal racism, rather than a desire to benefit the employer’s business; the test for vicarious liability had been satisfied and the appeal was allowed.

Practical implications of decision

This decision has arguably broadened the circumstances in which an employer can be found vicariously liable for the actions of its employees, potentially making it easier for both customers and co-workers to claim compensation from the employer when they are affected by a member of staff’s unlawful actions.