On appeal from: [2014] EWCA Civ 116

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

The claimant was seriously attacked by Mr Khan who was employed by the respondent to serve customers at the petrol station kiosk. Mr Khan was working at the kiosk when the claimant visited the petrol station. The claimant had done nothing that could be considered aggressive of abusive when Mr Khan attacked him and told him in threatening words never to return.

The claimant brought proceedings against the respondent on the basis that it was vicariously liable for the actions of its employee Mr Khan. The trial judge dismissed the claim because he considered that there was an insufficiently close connection between what Mr Khan was employed to do and his tortious conduct in attacking the Claimant for the Respondent to be liable. The Court of Appeal upheld the judge’s decision.

In giving the lead judgment, Lord Toulson first clarified that close connection test has been followed at the highest level and there was nothing wrong with that as such. In the present case, the court had to consider two matters. First, the court must ask what function or field of activities has been entrusted by the employer to the employee. This is to be viewed broadly. Second, the court must decide whether there was 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 facts of this case to those tests, Lord Toulson reasoned that it was Mr Khan’s job to attend to customers and respond to their inquiries. His conduct in responding to the claimant’s request with abuse 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. In clarifying this he explained firstly it is not correct to regard Mr Khan as having metaphorically taken off his uniform the moment he stepped out from behind the counter – he was following up on what he said to the claimant. Secondly, when Mr Khan followed the claimant to his car and told him not to come back to the petrol station that was not something personal between them, but an order to keep away from his employer’s premises. In giving the order he was purporting to act about his employer’s business Mr Khan’s motive in the attack is irrelevant.

For judgment, please download: [2016] UKSC 11
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