The Supreme Court has delivered judgments in two related cases, Cox -v- Ministry of Justice 2016 and Mohamud -v- WM Morrison Supermarkets Plc 2016, both examining the doctrine of vicarious liability
Cox concerned a personal injury claim brought by a catering manager at a prison. She was injured by the negligence of one of the prisoners who was working in the kitchen. The Court held that the prison service was vicariously liable for the prisoner, notwithstanding the fact that he was not an employee. Building on Lord Phillips’ judgment in Various Claimants -v- Catholic Child Welfare Society 2012, the Court held that a defendant may be vicariously liable where (i) harm is wrongfully done by a person who carries on activities as an integral part of the business activities of the defendant and for its benefit; and (ii) the risk of the wrongful act occurring was caused by the defendant in assigning those activities to the wrongdoer. These elements may exist in a relationship other than employment, and the defendant may therefore be vicariously liable for an individual who is not an employee e.g. a contractor, agency worker, etc.
The Claimant in Mohamud was assaulted and racially abused when visiting a Morrisons petrol station. The incident took place on work premises and was carried out by an employee. In deciding whether Morrisons was vicariously liable for the act of its employee, there were two relevant considerations: firstly, the nature of the job entrusted to the employee must be considered broadly, and secondly, the Court must enquire whether there was a sufficient connection between the employee’s position and his or her wrongful act to make it right, under the principle of social justice, to hold the employer vicariously liable for the wrongdoing. In this case, Morrisons was vicariously liable for its employee: attending customers was part of the role, and although the assault / abuse was not sanctioned, it was within the ‘field of activities’ assigned to the employee. The employee was purporting to act in connection with the business in which he was employed, i.e. serving customers, it was therefore just for Morrisons to be held liable.
These cases will go some way towards clarifying what has historically been a very complex area of the law.