Two recent cases have resulted in the Court of Appeal finding for the Defendant employer in claims involving intentional torts.

The first of these, the public liability case of Mohamud v WM Morrison Supermarkets Plc [2014] is due to be considered by the Supreme Court and the decision will be an important one for the insurance industry and legal practitioners alike.

In Mohamud the Claimant went to the kiosk of a petrol station to ask if he could print some documents off from his USB stick. He was racially abused by the kiosk attendant, so he walked back to his car. The attendant left the kiosk and dragged the Claimant out of his car, assaulting him on the station forecourt in a brutal and unprovoked attack.

The Claimant’s case was when the employee was ‘wearing the badge’ of his employer, the employer should be responsible for the consequences of the employee’s actions. It followed an interchange which began when the Claimant asked for a service which he thought the kiosk could supply and the customer was not at fault in any way. The attendant had received training not to confront customers who were abusive and/or angry – not that the Claimant was.

The second, and more recent case, is an employers’ liability case - Graham v Commercial Bodyworks Ltd [2015]. Mr Wilkinson and the Claimant were long-standing friends and work colleagues employed by the Defendant. They had been mucking around in the morning, but later on Wilkinson was seen to spray thinners on the overalls of the Claimant. He then borrowed a lighter which he lit in close proximity to the overalls. There was however no suggestion that Mr Wilkinson intended to cause any serious harm. It was a reckless prank.

In reaching its decisions in these cases the Courts of Appeal referred to the fundamental question of whether the wrongful act was “sufficiently related” to conduct authorised by the employer to justify the imposition of vicarious liability.

Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues from the risk, even if the wrong is unrelated to the employer’s desires. This has been a moving area in favour of claimants in sexual abuse cases, where the Supreme Court has held that, in order to determine whether the connection is sufficient, a number of subsidiary factors may be considered. These include the opportunity that the enterprise afforded the employee to abuse their power and the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise.

In Mohamud the Court of Appeal held that whilst the employer had created the opportunity for the employee to carry out the assault, that was not sufficient, and none of the other subsidiary factors were involved. Similarly in Graham the Court of Appeal held that whilst the employer had created the risk of abuse by allowing the employees to work with thinners, none of the other factors applied.

Interestingly Lady Justice Arden pointed out in Mohamud that “it may be unfair to impose liability on an employer for risks that it would be difficult for him to foresee or quantify since he may not have insurance or be able to obtain it on reasonable terms.”

The Supreme Court has listed both Mohamud and Cox v Ministry of Justice (another vicarious liability case involving the quasi-employment of a prisoner) for hearing in October 2015. In Mohamud it is hoped that the Supreme Court will consider it a step too far to create what in essence would amount to strict liability for assaults by members of staff.

This article was first published by Post on 07 September 2015