In a hotly anticipated decision handed down this morning, the Supreme Court was asked to revisit the circumstances in which an employer should be held vicariously liable for a vicious assault carried out by an employee on a customer.
In March 2008, Mr Mohamud stopped at a petrol station operated and staffed by WM Morrison Supermarkets Plc and asked a Morrisons’ staff member, Mr Khan, about printing facilities. Mr Khan responded in an abusive fashion, followed him from the kiosk and subjected Mr Mohamud to a vicious assault. Mr Mohamud later sued Morrisons, seeking damages for the personal injuries sustained in the unprovoked attack.
Not surprisingly, Morrisons argued that, in leaving the kiosk and attacking the claimant, against the specific instruction of his supervisor, Mr Khan had gone beyond the scope of his employment.
Vicarious Liability – The Position under Lister v Lesley Hall
At first instance and on appeal it was held that the two stage test following Lister v Hesley Hall  1 AC 215 remained the correct approach. The first stage requiring consideration is the relationship between the primary wrongdoer and the party alleged to be responsible. Is that relationship capable of giving rise to vicarious liability? In the matter at hand, the claimant had no problem in establishing that the relationship between Mr Khan and Morrisons was that of employer to employee.
The second stage is to consider whether the employee’s acts were “so closely connected with his employment that it would be fair and just to hold the employers vicariously liable for them.” At first instance, Mr Recorder Khangure QC did not consider the second stage of the test to have been sufficiently satisfied. Mr Khan’s duties were restricted and he had specific instructions not to confront in any way customers who were abusive or angry.
On appeal, the claimant submitted that Mr Khan, in a customer facing role, would be likely to have to respond to a variety of enquiries, some of which may be provocative. A broad approach should be taken as the assault did not arise from some chance meeting, but from a specific interaction between the claimant, as customer, and Mr Khan, as employee acting within his duties.
The Close Connection Test
In examining the close connection test, the Court considered a number of decided cases where an employee was given duties involving the distinct possibility of friction or confrontation arising. In Fennelly v Connex South Eastern Ltd, the defendant company was found vicariously liable for their employee, a railway ticket inspector, who had put a passenger in a headlock. The employee had the statutory authority to interfere with the progress of passengers who failed to purchase a ticket. Similar findings have been made in cases involving doormen who have authority to keep order and discipline.
The Court also considered the more recent Scottish Court of Session case of Vaickuviene v J Sainsbury Plc in which a supermarket shelf stacker was stabbed to death by a colleague. In that case the court held that it was not possible to hold that Sainsburys' business carried any special risk that persons such as the deceased would be harassed by fellow employees, no matter how broadly the context of their employment might be considered. The fact that the two people had been brought together at work was not sufficient.
In such circumstances, the second part to the Lister test was not considered to have been satisfied. Lord Justice Treacy quoted from Lord Neuberger’s observations in Maga v Archbishop of Birmingham:
“I accept that the court should not be too ready to impose vicarious liability on a defendant. It is, after all, a type of liability for tort which involves no fault on the part of the defendant, and for that reason alone its application should be reasonably circumscribed.”
Today's Supreme Court Decision
In arriving at a surprising decision unanimously allowing the appeal, the Supreme Court held Morrisons vicariously liable for the actions of Mr Khan in attacking the claimant. Mr Khan’s actions were described by Lord Toulson in his lead judgment as “inexcusable but within the field of activities assigned to him.” Mr Khan was purporting to be going about his employer’s business and, whilst it was a gross abuse of his position, it was still held to remain connected with the business in which he was employed to serve customers.
Lord Toulson commented that, whilst Mr Khan was obviously motivated by personal racism rather than a desire to benefit his employer’s business, this was “neither here nor there”.
This decision represents a further extension of the concept of vicarious liability and will be a cause of concern for employers and their insurers. For a while it has been the case that an employer has been liable for acts authorised by them even if the employee went beyond what was reasonable in performing the authorised act. Thus, in Mattis, a bouncer who was authorised to use force in the course of his duties was regarded as still performing an authorised act, albeit in an excessive way, when he stabbed a customer and, therefore, he was still acting in the course of his employment.
In our view this latest decision stretches that point to unacceptable levels. Clearly, Mr Khan was not authorised to use force in dealing with what appears to have been a perfectly reasonable enquiry from a customer no matter how broadly you look at it. Therefore, to find that he was still performing an authorised task in attacking the claimant seems unreasonable.
From now on it will become even harder to find ways to avoid liability for tasks performed by employees which at first blush seem to fall well outside the scope of their employment and insurers and their advisors will need to be even more inventive in running these arguments.
For further information contact Will Jones