The Supreme Court held that WM Morrisons Supermarkets was vicariously liable for an employee’s violent assault on a customer. There was a ‘sufficiently close connection' between the employee’s job (attending to customers) and the assault on the customer.
In 2008, the claimant parked his car at a Morrisons petrol station, and entered the kiosk to ask whether he could print some documents from a USB stick. Mr Khan, the respondent’s employee, refused the request in a rude manner, and a heated exchange followed. Mr Khan directed racist and threatening language towards the claimant, and told him to leave. The claimant returned to his car and was followed by Mr Khan. Before he could drive off, Mr Khan opened his passenger door, threatened him, and then punched him on the side of the head. The claimant got out and walked around to close the passenger door and Mr Khan subjected him to a further serious physical assault.
The claimant brought proceedings against the supermarket on the basis that it should be held vicariously liable for the actions of Mr Khan, its employee. The claimant was unsuccessful up to the Court of Appeal on the basis that there was an insufficiently close connection between what Mr Khan was actually employed to do, and his conduct in attacking the claimant.
The claimant appealed to the Supreme Court, mainly on the basis that a new test for vicarious liability should be adopted. Rather than the ‘close connection’ test that the courts have applied for many years, it was argued that the court should adopt a broader test of ‘close representative capacity’. As a second strand, and in the alternative, the claimant argued that he was a lawful visitor to the respondent’s premises, and Mr Khan was acting within the scope of the activities assigned to him as an employee.
The Supreme Court resisted the adoption of a new test for vicarious liability. However, it concluded that nonetheless, at no point did Mr Khan metaphorically take off his uniform. This was not a personal quarrel, but something that took place within the sphere of Mr Khan’s ordinary duties.
This case does not change, but rather underscores the established test for an employer’s vicarious liability. However, some may find it troubling that an employer can be held liable for an employee’s actions in circumstances where they are act in a wholly unsanctioned and unpredictable manner.