Two Court of Appeal cases published within a week of each other earlier this month have illustrated how difficult it can be to define the boundaries of vicarious liability.

The first involved an unprovoked assault on the claimant by an employee of Morrison’s Supermarkets at one of its petrol stations. The claimant had entered the kiosk where the employee was working and asked if it would be possible to print out some documents from a USB stick.  The employee abused him and then followed him into the forecourt where he subjected him to a serious and unprovoked assault. There was evidence that as these events unfolded the employee’s supervisor had instructed him not to leave the kiosk and was also urging him to return there while the assault was taking place.

The Court of Appeal said that while the defendant was clearly potentially liable (since the assault had been committed by one of its employees while at work) it was not liable on these particular facts because the employee had not been acting in the course of his employment. It could not be said that this was a case where there had been a risk inherent in the performance of the employee’s duties for which the employer should be responsible. The assault had been completely unprovoked, and the employee’s role was not one where friction with customers could be expected. That made it different from cases where the employee had been required to maintain control over customers, such as a bouncer working in a nightclub, where an outbreak of violence was more likely.

The second case involved a very different set of facts. This time the claimant was a catering supervisor at a prison. She was injured when a prisoner who was part of a detail working under her supervision dropped a heavy sack of provisions on her back. This time the issue was not whether the negligent act had been committed in the course of employment, but whether the Ministry of Justice should be liable in the first place, since the act had not been committed by an employee.

The Court of Appeal decided that while the prisoners were clearly not employees, this was one of the situations akin to employment where vicarious liability should be imposed. Although the prison service was obliged to offer prisoners work as part of their rehabilitation regime, in this case their work was integral to the running of the prison, and it would otherwise have needed to pay staff market rates to perform these duties. It would have been different if the prisoner had been engaging in other activities, such as sport or education, when the injury had been caused.

These contrasting cases illustrate that even though the law of vicarious liability continues to evolve, the Courts are still willing to limit its scope. That involves the difficult task of striking a balance between avoiding excessive burden on businesses who have to carry insurance for these risks, and ensuring that individuals who are injured through no fault of their own are adequately protected.