In two recent, and complementary, judgments the Supreme Court has considered and clarified the existing law relating to the doctrine of vicarious liability, paving the way for a "modern theory" of vicarious liability.
The doctrine of vicarious liability
As a fundamental principle, employers are liable for the torts of an employee where there is a sufficient connection between the employment and the wrongdoing. When considering whether an employer has assumed a duty to a third party, the courts will consider two questions:
- Is there a relationship between the wrongdoer and the employer, which is capable of giving rise to a vicarious liability?
- Is the employment sufficiently connected to the wrongdoing/omission?
Each of the recent decisions looks at the scope of these questions. We consider the details of each judgment below.
Mrs Cox, a catering manager at a prison, brought a claim against the Ministry of Justice (MoJ) for an injury to her back. This injury was suffered when a prisoner whom she supervised in paid work in the prison kitchen negligently dropped a sack of rice on to her.
At first instance, the judge had found that the MoJ was not liable as the relationship did not give rise to vicarious liability. In contrast, the Court of Appeal found that the activity carried out by the prisoner was part of the prison's activity in running the catering function of the prison. Both decisions focussed on the principles set out in Catholic Child Welfare Society and others v various Claimants and others which had found vicariously liability in a case relating to alleged sexual abuse by teachers at a boy's school. In that case, the judge set out five identifiers of an employment relationship that would make it fair, just and reasonable to impose vicarious liability on the employer:
- The employer is more likely to have the means to compensate the victim and is more likely to be insured;
- The tort will have been committed as a result of activity undertaken on the employer's behalf;
- The activity is likely to be part of the business activity of the employer;
- The employer, by employing the employee, will have created the risk of the tort being committed; and
- The employee will to some degree be under the control of the employer.
The Supreme Court agreed with the Court of Appeal that the MoJ was liable for the employee's negligence. Weighing up the factors in Catholic Child Welfare Society, Lord Reed commented that factors (b) to (d) above are interrelated and form the basis of a decision on vicarious liability. He noted that the decision in that case had been used to develop a "modern theory of vicarious liability" under which vicarious liability could arise outside a traditional employment relationship where the wrongdoer carries out activities for the defendant's benefit as an integral part of its business, and where the defendant has created a risk of the tort being committed by assigning the activities to the wrongdoer. The benefit to the business need not be limited to commercial enterprise or profit.
Mr Mohamud went into a Morrison's petrol station to ask if it would be possible to print off some photographs from a USB stick. Mr Khan, who was working at the kiosk at the time, responded with abusive language. When Mr Mohamud protested at being spoken to in this manner, Mr Khan ordered Mr Mohamud to leave the shop, using abusive and racist language. Mr Khan followed Mr Mohamud back to his car, opened the passenger door, and told him never to come back to the petrol station. When Mr Mohamud asked Mr Khan to close the door, Mr Khan punched Mr Mohamud and then subjected him to a further physical and verbal attack when Mr Mohamud left his car to close the passenger door. Mr Khan's supervisor had tried to stop him from attacking Mr Mohamud, but was ignored.
Mr Mohamud brought a personal injury claim against Morrison's and the court considered whether it was vicariously liable for Mr Khan's acts. At both first instance and appeal, the courts held that Morrison's was not vicariously liable. The Court of Appeal applying the decision in Lister v Hesley Hall, found that the test for "sufficient connection", that is, whether the torts were "so closely connected with [the] employment that it would be fair and just to hold the employers vicariously liable", had not been met.
The Supreme Court considered whether the "sufficient connection" test should be formulated as a test for "representative capacity"; however, it considered that this was not needed. The test in Lister should be applied broadly to the question of whether the wrongdoing is closely connected to the duties of field of activities of the employee having regard to policy.
Applied to the facts in this case, Mr Khan's job was to attend to customers and respond to their questions. Ordering Mr Khan to leave Morrison's premises was within the field of his employment. The fact that he followed Mr Mohamud to his car did not break the close connection with his duties and the fact that when opening the car door, he ordered Mr Mohamud away from Morrison's premises was evidence that this was not a personal matter. The fact that Mr Khan had grossly abused his position, the court found that Morrison's had employed him to deal with the public and it was just that they would be liable for his actions.
In both cases the Supreme Court has affirmed the tests from the existing case law relating to vicarious liability. Lord Reed's judgement in Cox, shows that the courts will look at all of the facts and circumstances of the case when considering whether there is a relationship capable of giving rise to vicarious liability. The "modern theory of vicarious liability" is flexible enough to enable liability to be extended beyond a traditional employment relationship. The decision in Mohamud is similarly reliant to some extent on its particular facts, but shows that employers will need to consider in the future that a link between the act and the "field of activities" will be enough to establish an employer's liability.