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Extension of the doctrine of vicarious liability

12.05.2016 Employment

Vicarious liability is a principle developed by the Courts, that means a party can be held liable for wrongs committed by another person. This most commonly occurs in the employment context. If there is a sufficient connection between the wrong committed by the employee and the employment, the employer can be held liable for the damage resulting from the wrong even though the employer may not have committed such a wrong itself.

Two recent cases have expanded on this concept. The first concerned the sort of relationship which has to exist between an individual and a defendant before the defendant can be made vicariously liable in tort for the conduct of that individual. The second was how the conduct of the individual has to be related to that relationship in order for vicarious liability to be imposed on the defendant.

Cox v. Ministry of Justice [2016] UKSC 10 

In this case, the Supreme Court unanimously found the Ministry of Justice (the “MoJ”), the government department responsible for the operation of the UK prison system, vicariously liable for the negligence of a prisoner carrying out tasks in a prison kitchen despite there being no employment relationship between the prisoner and the MoJ. 

Mrs Cox was employed as the Catering Manager at HM Prison Swansea and was injured when a prisoner negligently dropped a sack of rice onto her back. She claimed damages from the MoJ. 

At first instance, the county court found that although the prisoner was negligent, there was no relationship of vicarious liability between the prisoner and the MoJ. The relationship was not one of voluntary employment but of penal policy. 

The Court of Appeal allowed an appeal against that decision, finding that the relationship was one to which the doctrine of vicarious liability applied because the work of prisoners in the kitchen was essential to the functioning of the prison. 

The Supreme Court upheld the Court of Appeal decision. It focused on five criteria identified in earlier case law case which usually make it fair, just and reasonable to impose vicarious liability on the employer:

(i)  the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability;

(ii)  the tort will have been committed as a result of activity being taken by the employee on behalf of the employer;

(iii)  the employee's activity is likely to be part of the business activity of the employer;

(iv)  the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; 

(v)  the employee will, to a greater or lesser degree, have been under the control of the employer.

The Supreme Court found that these factors were of varying significance. In particular factors (i) and (v) were of less independent significance. Further, and crucially in this case, it found that the meaning of “business activity” is not restricted to the commercial activities of making a profit but can be extended to a less literal interpretation of business benefit. 

Mohamud v. WM Morrison Supermarkets plc [2016] UKSC 11 

In another unanimous decision, the Supreme Court has found an employer, WM Morrison Supermarkets plc (“Morrisons”) liable for a violent act committed by its employee against a customer.

Mr Mohamud (the “Customer”) was attacked in a Morrisons petrol station forecourt by a Morrisons’ employee, Mr Khan (the “Employee”) following a dispute during which the Employee ordered the Customer to leave the service station premises, followed him to his car and attacked him. The Customer sought to claim damages for his injuries from Morrisons due to its vicarious liability for the acts of its employees. 

The High Court found that Morrisons was not vicariously liable for the assault by the Employee on the basis that there was not a sufficiently close connection between what the Employee was employed to do and the acts he committed. The Court of Appeal upheld the High Court’s decision, finding that the Customer had failed to prove that the Employee’s acts were sufficiently connected to his employment. 

The Supreme Court overturned this decision. Rejecting the Customer’s arguments for a new, broader test of vicarious liability, the Court held that there was nevertheless a sufficiently close connection between the employment and the attack carried out by the Employee to impose vicarious liability on Morrisons for the acts of the Employee. Although Morrisons would not have condoned his actions, there was a sufficiently close connection with the nature of his employment which was to serve customers. 

Both of these cases continue a recent tradition of English case law widening the scope of the concept of vicarious liability. Employers should take care properly to train, issue clear guidelines to, and supervise, all persons who carry out activities on behalf of their organisation, whether those persons are actually employed or not and whether or not they would condone their actions.

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