Vicarious liability is a means of establishing that a person or company may be liable for the acts of another, usually but not always employees. This can include agency staff and/or subcontractors. Whilst these are obviously “employed” by third parties, if a company exerts sufficient control over the activities of those staff, there could well be vicarious liability for those staff on the basis that the company in question is deemed to be their “employer” for a particular activity or period of time. This is a liability that cannot be contracted out of. Two recent cases which came before the Supreme Court have suggested that the courts may be prepared to look beyond the traditional employer/employee relationship. According to Lord Red, the scope of vicarious liability depends upon the answers to two questions:

“First, what sort of relationship 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? Secondly, in what manner does the conduct of that individual have to be related to that relationship, in order for vicarious liability to be imposed on the defendant?”

The first question was considered in the claim brought by Mrs Cox who was employed by HM Prison Swansea as a catering manager. She was accidentally injured by a prisoner, not an employed member of staff, who dropped a sack of rice on her back. She sought compensation from the Ministry of Justice (“MOJ”). At first instance, the court held that the MOJ was not vicariously liable for the negligence of the prisoner. However, the CA disagreed, stating that the relationship between the prisoner and the prison service was similar to that of employer and employee. The Supreme Court agreed with Lord Red, noting that:

“a relationship other than one of employment is in principle capable of giving rise to vicarious liability where harm is wrongfully done by an individual who carries on activities as an integral part of the business activities carried on by a defendant and for its benefit (rather than his activities being entirely attributable to the conduct of a recognisably independent business of his own or of a third party)...”

In other words, the Supreme Court recognised that today many workers may in reality be part of the workforce of an organisation without having a contract of employment with that organisation. Further, the word “business” did not necessarily require the carrying out of commercial activities nor the pursuit of profit. It was enough that the prison carried on activities in the furtherance of its own interests, here the rehabilitation of prisoners.

In the second case, the Supreme Court considered the connection between the relationship of the employee and employer and the conduct of the employee which caused harm to the potential claimant. Here, Mr Mohamud visited a petrol station owned by Morrisons, where he was racially abused and assaulted.  The perpetrator of the attack, Mr Khan, was an employee of Morrisons. His job involved some interaction with customers and members of the public who attended the station kiosk, but nothing more than serving and helping them. The issue for the courts was whether or not there was a sufficiently close connection between the wrongdoing of Mr Khan and what he was employed to do. At first instance and in the CA, the courts held that the fact that Mr Khan’s employment involved interaction with customers was not enough to make his employers liable for his use of violence towards the claimant. The Supreme Court disagreed.

In applying “the close connection test”, Lord Toulson said that a court must consider two matters:

  1. What was the nature of the employee’s job; and
  2. Was there a sufficient connection between the position in which the employee was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice?

Mr Khan’s job was to attend to customers and respond to their enquiries. His response to Mr Mohamud as a potential customer was within the “field of activities” entrusted to him by his employer. The court rejected the argument that in leaving the kiosk, the significant or close connection between Mr Khan and his employment at Morrisons was broken. Mr Khan leaving the kiosk, following Mr Mohamud and threatening and assaulting him was one “seamless episode”. Further, in telling Mr Mohamud never to return to the premises, Mr Khan was purporting to act about his employer’s business. Lord Toulson continued that:

“It was a gross abuse of his position, but it was in connection with the business in which he was employed to serve customers. His employers entrusted him with that position and it is just that as between them and the claimant, they should be held responsible for their employee’s abuse of it. Morrisons was therefore held responsible for the abuse of the position it entrusted to Mr Khan.”

The assault was unprovoked and unexplained, but there was a sufficiently close connection between the position in which the employee was employed, which included face to face contact with customers, and his wrongful conduct to make it just that Morrisons should be held responsible for the consequences of Mr Khan’s actions.