Vicarious Liability: Precarious times?

by Maria McCloskey

Two notable decisions of the Supreme Court in the past year have solidified the very wide scope of vicarious liability, with the main message being that vicarious liability can arise outside of the traditional ‘employer – employee’ relationship.
The case of Cox v Ministry of Justice [2016] UKSC 10 arose following an instruction by a catering assistant (the claimant). employed at a prison in Swansea, to 4 prison inmates ‘working’ in the kitchen to move sacks of rice. One of those inmates inadvertently dropped one of the sacks on the claimant’s back resulting in injury. Lord Reed in the case looked to the relationship between the inmate and the defendant i.e. the prison service, in considering whether the employer could be vicariously liable for the conduct of that individual. Here the Supreme Court was satisfied that a relationship other than the traditional employment one could exist so as to give rise to vicarious liability. The Court rejected the defendant’s argument that it was not a commercial entity, and that the inmate – the tort feasor – was not carrying out activities that would derive profit for the defendant. This, the court said, did not matter, and it described the prison inmate’s activity at the time as “an integral part of the business”. It further commented that the inmates carrying out such work within the prison were at risk of carrying out a number of negligent acts and that that risk had been created by the defendant. The Supreme Court relied upon the earlier decision following a claim by several claimants against the Institute for the Christian Brothers, where the Institute was held to be vicariously liability for sexual abuse perpetrated by brother teachers at a residential school, despite the fact that the Institute did not manage the school. Notably in both cases, the tort feasors were not paid a wage, but this did not result in an inability to give rise to vicarious liability. Nevertheless the court indicated that it was fair to test the reasonableness of the result, as here with the ‘prison – inmate’ scenario but, unfortunately for the prison, the court found against it on this occasion.

The Court seemed to take the principle one step further when, in the case of Mohamud v W.M.Morrison Supermarkets plc [2016] UKSC 11, it found the defendant liable for what was described as a racially motivated, violent, and unprovoked assault on a customer. The Court was asked by the claimant (in what was perhaps an indication of the concern about the tenuousness of their position) to consider a move away from the traditional ‘close connection’ test – between the act giving rise to the injury and what employee had been employed to do – to one of ‘representative capacity’. The Court refused to change the vocabulary and indicated that the latter ‘representative capacity’ suggestion was much too vague. Rather it considered the test on two fronts:

1: what functions had been entrusted to the employee – a matter it suggested, to be considered broadly, and
2: whether there was a sufficient connection between the employee’s wrongful conduct and the position for which he was ’employed’, so as to make it right (emphasis added) that the employer to be fixed with vicarious liability – and by ‘right’ the court referred specifically to the principle of social justice.

The circumstances of that case were that the claimant had enquired of a petrol kiosk attendant, employed by the defendant, whether there were printing facilities available in the store. The response was a foul-mouthed and verbally abusive one, and the claimant was ordered, by the kiosk attendant, to leave the premises.
In finding for the claimant, the Court described what happened next (namely the assault and the lead up to it) as “an unbroken sequence of events”. The court indicated that vicarious liability could arise where an employee had used or misused his or her position in a way which resulted in injury to the claimant. In ordering the claimant to keep away from his employer’s premises, and what was described by the court as “reinforcing that order by violence”, it said that the kiosk attendant was purporting to act in the furtherance of his employer’s business.
One might see this as somewhat of a stretch when you consider that the plaintiff did leave the premises and got into his car. Even more so, to say that the employee was in any way “furthering the employer’s aims” (a consideration of the Court), when one considers that the attendant opened the front passenger door of the plaintiff’s car, partly entered the vehicle and then proceeded to commit the assault. Much greater still is the stretch, considering that the attendant’s supervisor had encouraged him to go back to his kiosk and had earlier told him not to follow the plaintiff out of the shop premises. It might be fair to argue, therefore, that the attendant acted in direct contravention of his employer’s instructions.

The court differentiated a previous decision in the case of Warren v Henlys Ltd which also involved an assault by a petrol attendant but where there was no finding of vicarious liability on the basis that the claimant in that case had left the petrol station and returned at a later point. This was not a ‘seamless episode’ the court said, whereas the circumstances in Mohamud were deemed to be so.
The decision, in my view, leaves employers exposed to the risk that violent people have a potentially protected outlet (in the sense that the injured party is likely to sue the employer only), in the form of their employment, within which to carry out assaults. It would, nevertheless, be remiss of employers, in light of the decisions in Cox and Mohammud, not to ensure their contracts of employment are as robust as they can be with regards to the scope of employment.
The decisions in these cases might also create the potential for the principles of vicarious liability to be extended to schools, community groups and sporting clubs if, for example, a pupil was asked to move classroom equipment and, in the course of doing so, caused injury to another pupil. Would that pupil be considered to be furthering the interests or ‘business’ of the school?
Perhaps most worryingly is the position in which that the Mohamud decision potentially leaves prisons, particularly in light of the rise in prison attacks, and notably the recent deaths at Pentonville Prison, North London. If there was a ‘merging’ of the factual circumstances of the two cases above, it is not beyond the realms of possibility that a prison inmate serving meals, and thus ‘in the course of employment’, could get into an altercation with another inmate, which could result in very serious injury or death. Would the injured party (or deceased party’s family) be able to bring a claim against the prison service under the head of vicarious liability? The judgment in Mohamud suggests they could. Surely this would be a travesty for an already struggling prison service.

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