Following two recent Supreme Court decisions, the principle that employers can be held responsible for the wrongful acts of their employees is expanding. This affects a number of personal injury claims as it is now clearer than ever that the doctrine of vicarious liability is not confined to cases where there is a contract of employment between an employer and employee. There are essentially two stages to determine whether vicarious liability can be imposed: (i) what is the relationship between the wrongdoer and the potential defendant? and (ii) What connection is there between that relationship and the wrongful conduct? Both limbs of the test are addressed below:

What type of relationship can give rise to vicarious liability?

The principle that a contract of employment is not necessary for the imposition of vicarious liability was recognised in a wide scale personal injury claim involving sexual abuse, commonly known as the Christian Brother’s case. The Defendant was an international unincorporated association (the “Institute”) whose mission was to provide children with a Christian education. It was held vicariously liable for the sexual abuse of a number of children by members of the Institute, known as brothers, who taught at approved residential schools. The court considered the relationship between the Institute and the wrongdoers to determine whether it was capable of giving rise to vicarious liability. The Court found that even though the brothers did not have contracts of employment with the Institute itself, the relationship between them was nevertheless akin to that of employer and employees.

This case was considered and expanded upon in the recent decisions of Cox v Ministry of Justice [2016] UKSC 10. Mrs Cox sought to bring a personal injury claim following an incident in the kitchens of HMP Swansea. Mrs Cox was the catering manager and she supervised a number of employed staff as well as prisoners who worked in the kitchen as part of the prison regime. On 10 September 2007, a prisoner was assisting with the unloading and carrying of supplies from a delivery vehicle. He accidently lost his balance and dropped a 25kg bag of rice on Mrs Cox’s back causing her injury. The court had to decide whether the relationship between the prisoner, who was not employed, and the Prison Service was such that it should be held liable for the negligent actions of the prisoner. The Court applied the criteria established in the Christian Brothers case and found that the relationship between the prisoner and the prison service was akin to that of employer and employee, and in fact even closer because it was founded on compulsion rather than mutuality.

Is there a sufficiently “close connection” between that relationship and the wrongful act?

In another sexual abuse claim, it was held that vicarious liability could apply to criminal acts including the commission of sexual offences. In Lister v Hesley Hall [2001] UKHL 22, a warden of a boarding house sexually abused a number of pupils. The managers and owners of the school were held vicariously liable for the assaults because there was a sufficiently close connection between the warden’s acts and his employment.

This close connection test was considered further in the recent Supreme Court decision of Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11. The Claimant entered a Morrison kiosk at a petrol station to enquire whether he could print off some documents from a USB stick. The shop attendant, who was behind the counter, replied “We don’t do such shit” and asked the Claimant to leave the kiosk. The shop attendant followed the Claimant outside on the forecourt and proceeded to punch the claimant in the head, knocked him to the floor and attacked him with punches and kicks, while he lay curled up on the petrol station forecourt.

The court had to consider whether there was a sufficiently close connection between what the attendant was employed to do and the brutal assault to make it just for the employer to be held liable. Morrisons argued that it should not be held liable for the actions of the violent employee because this was not related to his employment duties. The court found that the attack was committed by the employee in an attempt to get the claimant out of the petrol station. It was held to be a seamless and unbroken chain of events that meant that there was a sufficiently close connection. Morrisons was found liable for the brutal actions of its employee.

A changing landscape?

The recently adopted approach is broader; courts have recognised the changing nature of working patterns and are much more willing to impose responsibility on employers - even in the absence of a contract of employment and where the wrongdoing is unlawful and criminal. Organisations and companies will want to be increasingly cautious - not only in relation to employees but also with anyone working alongside them, including agency care and nursing staff, consultants, volunteers and interns. The remit of vicarious liability is clearly expanding and applies to an increasing range of circumstances and environments - it is no doubt a changing landscape with positive ramifications for those who suffer injury.