The Claimant visited the Defendant’s petrol station. Upon checking the tyre pressures on his car, the Claimant, who is of Somali descent, entered the petrol station kiosk and was subject to abuse including racist language by the Defendant’s employee Mr Khan.
The Claimant left the kiosk and attempted to return to his car but was followed by Mr Khan who carried out a serious assault on the Claimant on the forecourt of the petrol station. The Claimant sustained serious injuries in the attack.
It was accepted the assault on the Claimant was completely unprovoked, the Claimant was in no way at fault, and had not behaved offensively or aggressively at any stage towards Mr Khan or any one else.
At the first instance the recorder dismissed the Claimant’s claim against the Defendant on the basis that the Defendant was not vicariously liable for the attack carried out on the Claimant. The fact that the assault was carried out by an employee of the Defendant, upon the Defendant’s premises, and that the employee was required to interact with customers in the course of his duties was not sufficient to satisfy the close connection between the wrongdoing of the employee and the employment.
The Claimant appealed and the Court of Appeal was asked to determine whether the Defendant was vicariously liable for the assault committed by Mr Khan on the Claimant.
The Court of Appeal considered the established 2 stage test of vicarious liability:
- The relationship between the wrongdoer and the person alleged to be liable, and whether that relationship is capable of giving rise to vicarious liability; and
- Whether there is sufficiently close connection between the wrongdoing (in this case the assaults) and the employment so that it would be fair and just to hold the employers vicariously liable – this was the issue the Court of Appeal needed to consider.
In this case there was no doubt that the first test was satisfied by the relationship between Mr Khan and his employer, the Defendant.
The Court of Appeal however did not consider that the second test was satisfied. The mere fact that of contact between a sales assistant and a customer, which is plainly authorised by an employer, is not sufficient to fix the employer with vicarious liability.
The appeal was dismissed.