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The Supreme Court re-examines vicarious liability

03-March-2016 18:01
in Employment
by Timothy Salisbury

On 2 March 2016, the Supreme Court affirmed the “close connection” test laid down in Lister v Hesley Hall Ltd [2001] UKHL 22; [2001] 1 AC 215, whilst hearing the appeal of Mohamud v WM Morrison Supermarkets plc. [2016] UKSC 11. When properly applied, the test meant that the supermarket chain Morrison’s were vicariously liable for the actions of an employee, when the employee used violence to eject somebody from their premises.


The facts


On 15 March 2008 the appellant, Mr Mohamud, was on his way to take part with other members of his community in an event in London. He stopped off at a Morrison’s petrol station to print some documents from his USB stick. Mr Khan, an employee at the petrol station, used foul, racist and threatening language, toward Mr Mohamud and asked him to leave. As Mr Mohamud left, Mr. Khan followed him and proceeded to tell him in threatening words never to return. Mr Khan then assaulted Mr Mohamud in a serious attack, involving punches and kicks. In carrying out the attack Mr Khan ignored instructions from his supervisor, who came on the scene at some stage and tried to stop Mr Khan from behaving as he did.


First Instance decision


In a detailed judgment, the trial judge concluded that Morrison’s were not vicariously liable for Mr Khan’s unprovoked assault. The principal reason was that there was not a sufficiently close connection between what Mr Khan was employed to do and his tortious conduct for his employer to be held vicariously liable. The “close connection” test laid down in Lister was applied. A further reason given by the judge was that Mr Khan made a positive decision to come out from behind the counter and follow the claimant out of the kiosk in contravention of instructions given to him.


Court of Appeal decision


The Court of Appeal upheld the judge’s decision that the claim failed the “close connection” test. The fact that Mr Khan’s employment involved interaction with customers was not enough to make Morrison’s liable for his actions. Christopher Clarke LJ added that if the question had been simply whether it would be fair and just for the company to be required to compensate the claimant for his injuries from the assault, there would be strong grounds for saying that it should. However, he concluded that this was not the legal test.


Supreme Court decision


Lord Toulson was satisfied that vicarious liability should be imposed and in doing so, affirmed the “close connection” test. In applying it to the facts, his Lordship held that Mr Khan’s job to attend to customers was within the ‘field of activities’ assigned to him. Mr Khan’s attempt to remove Mr Mohamud from the petrol station by violence, although a gross abuse of his position, was in connection with the business in which he was employed and therefore Morrison’s were vicariously liable.




On the same day, the Supreme Court handed down the decision in Cox v Ministry of Justice[2016] UKSC 10.Mrs Cox, was working as a catering manager at Swansea Prison. An inmate was also working in the kitchens in the prison. He was not an employee, but was selected to work in the kitchen and his work was carried out under the direction of the prison staff. The inmate accidentally dropped a bag of rice on Mrs Cox, causing injury. She brought proceedings against the Ministry of Justice on the grounds that the prison service was vicariously liable. The Supreme Court held that vicarious liability can arise in non-employment relationships, where the wrongdoer is integrated into the defendant’s operation and the defendant has created a risk of wrongdoing by assigning responsibility to the wrongdoer.


© 2016 Chambers of Lawrence Power, 4 King’s Bench Walk, Temple, London, EC4Y 7DL. Tel: 020 7822 8822. www.4kbw.net  email jr@4kbw.net