Supreme court re-examines vicarious liability

Thanks to Angharad Davies of St. Pauls Chambers for preparing this case summary

What sort of relationship has to exist between an individual and a Defendant before the Defendant can be made vicariously liable in tort for the conduct of that individual? And what is the connection between that relationship and the wrongdoer's act or default (such as to make it just that the Defendant should be held legally responsible to the claimant for the consequences of the wrongdoer's conduct)?

A relationship other than employment is in principle capable of giving rise to vicarious liability provided certain conditions are met and there is nothing wrong with the traditional close connection test if properly employed held the Supreme Court in (1) Cox v Ministry of Justice and (2) Mohamud v WM Morrison Supermarkets plc.

Mrs Cox, was working as a catering manager at Swansea Prison, when a prisoner working in the kitchen accidentally dropped a bag of rice on her, causing injury. She brought proceedings against the Ministry of Justice on the basis that the prison service, one of its executive agencies, was vicariously liable. The prisoner was not an employee but was required to work in the prison, he had been specifically selected to work in the kitchen and his work was carried out under the direction of the prison staff. Therefore his work formed part of the operation of the prison providing meals for his fellow prisoners.

In 2008 Mr Mohamud stopped at a petrol station he was on way to London wanted to print some documents from a USB stick. He enquired at a kiosk to see if they could help. The petrol station was part of Morrisons Supermarkets and their employee, Mr Kahn, was behind the counter. Mr Khan was rude to Mr Mohamud. Mr Kahn ordered him off premises with a torrent of threatening and racist abuse. Mr Mohamud returned to his car, he was followed by Mr Khan but before he could drive off Mr Kahn opened the passenger door and punched him on the head. Mr Mohamud got out to close the door and Mr Kahn continued to assault him.

In Cox, the Court held that a relationship other than employment is in principle capable of giving rise to vicarious liability provided certain conditions are met. First, harm must be wrongfully done by a person who carries on activities as an integral part of the business or operation carried on by the Defendant for its benefit and second, the risk of a wrongful act being committed must be caused by the Defendant assigning activities to the person in question.

In Mohamud, the Court traced the history of the development of the law of vicarious liability and concluded that there is nothing wrong with the close connection test properly applied. In a case such as this the court is to ask itself two questions, firstly, what field of activities was entrusted to the employee or what was nature of job, which is to be answered broadly. Secondly, whether there was sufficient connection between the field of activities carried out by employee for it to be just for the employer to be responsible.

In this case the violence was a re-enforcement of Mr Kahn’s order to leave the premises which was sufficiently connected to the job assigned to him that the employer should be held responsible.

The implications of this go beyond prisons as the Supreme Court has now accepted that vicarious liability can arise where there is no contract of employment but where activities are undertaken that are integral to the business. This approach may be relevant in the context of many modern work places where workers may be part of work force but without having a contract of employment with it.