In two recent cases, the Supreme Court has considered the scope of the test for vicarious liability and found that its ambit can be extremely wide, covering both employment and “employment-like” relationships.

In the case of Cox v Ministry of Justice [2016], the Supreme Court upheld the Court of Appeal’s decision that the Ministry of Justice was vicariously liable for a prisoner’s negligence when a prisoner, who was working in the prison kitchen, accidentally dropped a 25kg sack of rice on the back of the prison’s catering manager. The Court of Appeal held that the relationship between the Ministry of Justice and the prisoner was sufficiently “akin to employment” to render the Ministry of Justice vicariously liable for his negligence. Whilst not an employee, the prisoner in question was integrated into the Ministry of Justice’s work, business and organisation at the prison to such an extent that it was just to hold the Ministry of Justice to account – he had been specifically selected to work in the kitchen, was required to do so and his work was carried out under the direction of the prison staff.

In the case of Mohamud v WM Morrison [2016], the Court of Appeal found that the employer was not vicariously liable for an assault and racial abuse by one of its employees, which took place on its premises, because such actions fell outside the scope of that employee’s employment. In this case, the employee in question assaulted and racially abused Mr Mohamud, who had stopped at the petrol station where the employee worked, and asked if the employee could assist him with printing some documents from a USB stick. The Court of Appeal held that whilst it was relevant that the assault took place at the employee’s place of work at a time when the employee was working, this did not establish a sufficiently close connection between the wrongdoing and the employment. However, the Supreme Court disagreed. The Supreme Court held that the usual test of close connection could apply in this case, and when it was applied, the result was that the employer was vicariously liable. In this case, the violence and abuse was a re-enforcement of the employee’s previous order to Mr Mohamud to leave the premises and, as such, was therefore sufficiently connected to the job assigned to him to render WM Morrison vicariously liable.

These cases have allowed the Supreme Court to reflect on the current law of vicarious liability.  Having considered the current position, the Supreme Court has affirmed the existing principles, and the cases demonstrate the broad approach that the courts will take to the “close connection” test. The Court acknowledged that the legal principles are by their nature too imprecise to apply in a straightforward and mechanistic way to borderline cases, which is why the outcome in many cases will depend ultimately on a judgment being made by the Court based on an analysis of the facts and circumstances of each case.