Vicarious Liability – Are there limits to your liabilities?

by Julie Bann and Adrian Hoggarth

Two cases have recently been determined by the Supreme Court on this issue.

In the first, Mohamud v WM Morrison Supermarkets plc, the Supreme Court reviewed the question of whether a negligent action was outside the scope of the employment relationship.

Mohamud was assaulted and racially abused by K, an employee of Morrisons, on the premises of the supermarket petrol station where the employee worked. The Supreme Court disagreed with the Court of Appeal decision, that there was not a sufficiently close connection between the wrongdoing and the employment.

The Supreme Court endorsed the two part ‘close connection test’:
1. the nature of the job entrusted to the employee must be considered broadly; and
2. the court must enquire whether there was a sufficient connection between the employee’s position and his or her wrongful act to make it right, under the principle of social justice, to hold the employer liable for the wrongdoing.

Applying this analysis to the present case, the Court was satisfied that vicarious liability should be imposed. It was K’s job to attend to customers and, while his conduct towards Mohamud was inexcusable, it was within the ‘field of activities’ assigned to him. What happened thereafter was an unbroken sequence of events. K attempted to remove Mohamud from the store and used violence to do so. Thus, he was purporting to act about his employer’s business. Although it was a gross abuse of his position, it was in connection with the business in which he was employed to serve customers. Therefore Morrisons should be held responsible for his actions.

In the second case, Cox v Ministry of Justice, the Supreme Court considered how far the vicarious liability rule should apply beyond employee/employee relationships and held that there were two key considerations:
(1) harm is wrongfully done by a person who carries on activities as an integral part of the business activities of the defendant and for its benefit; and
(2) the risk of the wrongful act occurring was caused by the defendant in assigning responsibility to the wrongdoer.

Cox, a catering manager in a prison, was injured when one of the prisoners working in the kitchen dropped a 25kg bag of rice on her back. She pursued a claim for personal injury against the MoJ. The County Court initially rejected the claim but that decision was overturned by the Court of Appeal where is was held that the MoJ should be held liable for the actions of the prisoner in this case. The Supreme Court agreed, confirming that the prisoner had been assigned to work in the kitchen by the Prison and was carrying out activities in the kitchen as an integral part of prison activities. On this basis the MoJ was liable for the accident.

It was acknowledged that while this test did extend the scope of vicarious liability beyond the employer/employee relationship, it would not go as far as imposing liability for activities which were entirely attributable to the conduct of a clearly independent business or a third party.

Comment
The first case highlights the importance of training staff on the limits to their responsibilities and powers, especially those dealing directly with the public.
The second case will potentially impact organisations that operate with volunteers or trainees or work placement schemes.
Again, the key is to ensure that only trained personnel undertake any activity that could be dangerous to the health and safety of others.