Mr A M Mohamud (in substitution for Mr A Mohamud (deceased)) v WM Morrison Supermarkets Plc [2016] UKSC 11

Why care?

Vicarious liability is a common law principle of strict, no-fault liability for wrongs committed by another person. In an employment relationship, it makes an employer liable for the actions of an employee where there is sufficient connection with the employment, even if the employer itself has done nothing wrong (Lister v Hesley Hall Ltd (2001)).

In the case below, the Supreme Court considered whether the nature of the wrongful act was so close that it is just and reasonable to impose vicarious liability on the employer.

The case

M was a customer who visited a small Morrisons supermarket and petrol station, with a kiosk/convenience store. K was employed by Morrisons to see that the petrol pumps and the kiosk were kept in good order, and to serve customers.

M asked K if it was possible to print off some documents contained on M’s USB stick. K replied with abuse and racist insults. M left the kiosk and walked back to his car, followed by K, who opened the front passenger door and partly entered the car, shouting more abuse. M told him to get out of his car and K punched M in the head. When M got out of his car to close the passenger door, he was punched twice more in the head by K, who “then leapt on the Appellant and subjected him to a serious attack involving punches and kicks while the Appellant was curled up on the petrol station forecourt”. K’s supervisor had told K not to follow M out of the kiosk, and was trying to encourage him to return inside when the assault took place.

M brought proceedings against Morrisons on the basis that it was vicariously liable for the actions of K, its employee. The trial judge found that there was an insufficiently close connection between what K was employed to do and his attack on M, so Morrisons was not liable.

The Court of Appeal agreed with the trial judge that Morrisons was not vicariously liable for its employee’s actions. There was not a sufficiently close connection between the assaults and the employment that it would be fair or just to make the employer liable. K’s job did not include any element of keeping order over customers. The supervisor had told K not to follow M out of the kiosk and K had carried out the attack “purely for reasons of his own”.

M appealed, challenging whether the “close connection” test was the appropriate standard to apply, and arguing that his claim should have succeeded in any event. The Supreme Court upheld M’s appeal and found Morrisons vicariously liable for K’s actions; it dismissed C’s appeal.

The Supreme Court (Toulson LJ) noted that in Lister the Court had been criticised for not clearly defining the precise criteria which will give rise to vicarious liability, and that the ‘close connection’ test does not explain the necessary nature of the connection. He identified two matters for a court to consider:

  1. What is the nature of the employee’s job?
  2. Is there sufficient connection between the position in which the employee was employed and the wrongful conduct to make it right for the employer to be held liable as a principle of social justice? The Court identified a number of cases in which the employee misused his position in a way which injured the claimant, and it was right that the employer which had put him in that position should be held responsible:
  • Lloyd & Grace (1912) – a solicitor’s clerk managing the conveyancing department of the firm defrauded a client who had come to the firm for advice about properties left to her by her husband
  • Petterson v Royal Oak Hotel Ltd (1948)– a barman refused to serve a drunk customer. The customer threw a glass at him; he picked up a piece of the broken glass and threw it back, injuring another customer.
  • Lister v Hesley Hall Ltd (2001) – the warden of a school boarding house sexually abused the children in his care.

On the other hand:

  • Warren v Henlys Ltd (1948) – a petrol station attendant wrongly suspected a customer of trying to make off without paying, which led to an angry confrontation on both sides. After paying for the petrol, the customer drove off after a police car, complained to the officer about the attendant and the police officer and customer returned. The police officer listened to both men, and indicated he did not think it was a police matter. The customer said he would report the attendant to his employer, and the attendant punched the customer in the face. In this case, the employer was not liable since any misbehaviour by the attendant was past history by the time of the assault.

Applying these principles to Mohamud, it was K’s job to attend to customers and respond to their enquiries. His verbal reaction towards M was within the field of activities assigned to him (although inexcusable) and what followed was part of an unbroken sequence of events. K had not “metaphorically taken off his uniform the moment he stepped from behind the counter”; he was following up on what he had just said in one seamless episode. Secondly, when he had followed M back to his car, he told him never to return to the petrol station, his employer’s premises, and was purporting to act about his employer’s business when he reinforced this order with violence. His behaviour was a gross abuse of his position, but nevertheless it was a position with which Morrisons had entrusted him, and it was just that as between them and M, Morrisons should be held responsible. Toulson LJ added that “[K]‘s motive is irrelevant. It looks obvious that he was motivated by personal racism rather than a desire to benefit his employer’s business, but that is neither here nor there.”

What to take away?

The Supreme Court identified both Mohamud and Cox v Ministry of Justice (a case in which it was held that a prison was liable for injury caused to an employee by a prisoner, who was working in the prison kitchens, negligently dropping a sack of rice on her back) as a chance to “take stock” of the existing law on vicarious liability, before affirming it.

The facts of Mohamud are shocking, but the case is an illustration of how broadly the existing “close connection” test can be interpreted. The court acknowledged that the principles in both cases are by their nature too imprecise to apply easily to borderline cases. The outcome will often depend upon a court making a full and careful analysis of the facts and circumstances of each case.