The Supreme Court has this week handed down its decision in Mohamud v WM Morrison Supermarkets plc on the scope of vicarious liability - a decision that will be viewed as important for employers and organisations generally.
In recent years, there have been a number of Court of Appeal judgments, expanding the scope of the doctrine of vicarious liability, but the Supreme Court's decision in Mohamud represents the most significant expansion for 15 years. One effect may be a notable swell in claims against employers, public bodies and charities for the wrongs of their employees and agents.
The facts of Mohamud v WM Morrison
The defendant in this case was the well known supermarket chain, WM Morrison Supermarkets plc (“Morrisons”). Morrisons employed a Mr Khan, who worked in a kiosk at a petrol station serving Morrisons’ customers. Mr Khan, unbeknownst to Morrisons at the time, was prone to violent and racist outbursts.
The victim of Mr Khan, Mr Mohamud (the claimant), was a man of Somali origin. Unfortunately, he approached Mr Khan at his kiosk, with a USB stick, and enquired as to whether he could print some documents. Mr Khan took issue with the enquiry, and responded “We don’t do such shit”. Mr Mohamud left the kiosk, but Mr Khan pursued him and beat him up, to ensure Mr Mohamud understood that he was not to return. Mr Khan persisted with his attack after his supervisor came to the scene and told him to stop. Mr Mohamud then sued Morrisons for the actions of Mr Khan.
The law of vicarious liability
In essence, vicarious liability arises where:
1. There is a relationship between a defendant and a “wrongdoer” or tortfeasor (usually an employment relationship, but it can be an analogous relationship of control); and
2. There is a “sufficiently close connection” between the nature of the above relationship and the wrongdoer’s act, such that the defendant should be liable for the wrongdoer’s wrongful act.
As acknowledged by the Lord Toulson, giving the lead judgment, the case law in this area “is not entirely consistent”.
The decisions at first instance and in the Court of Appeal for Morrisons
At first instance, the trial judge found no vicarious liability. The reasoning was that there was no sufficiently close connection between “serving and helping” customers on the one hand, and subjecting them to violent racist attacks on the other. There is considerable logic to this analysis. That decision was appealed to the Court of Appeal where, similarly, Christopher Clarke LJ held that to describe Mr Khan’s rampage as “a perverse execution of Mr Khan’s duty to engage with customers” would be to “part company with reality.”
The decision of the Supreme Court for the claimant
For the Supreme Court, Mr Khan’s foul-mouthed initial response to a customer’s enquiry was clearly within the “field of activities” assigned to him. The subsequent pursuit and assault was “an unbroken sequence of events” and there remained a sufficient connection with Mr Khan’s employment for two reasons:
1. Mr Khan was “following up on what he had said to the claimant. It was a seamless episode.”
2. When Mr Khan followed the claimant, and just before he beat him up, he told the claimant that he was never to come back to the petrol station. By making this statement, the court held that Mr Khan was “purporting to act about his employer’s business.” Morrisons had entrusted him to serve customers, and “they should be held responsible for their employee’s abuse” of customers.
This decision is not a revolution in the scope of vicarious liability. The law has been moving in this direction for some time now. Back in 2001, the House of Lords held that an institution could be liable for the wrongs of a warden who abused children in his care, even where his actions had been the direct opposite of his job function of caring for the children (Lister v Hesley Hall  UKHL 22).
The case is, nevertheless, highly significant. Readers will note the tone of the lower courts’ approach in this case. Although the judge at first instance expressed great sympathy for the claimant, he considered the law of vicarious liability to be clear: there was no sufficiently close connection between the employment relationship and Mr Khan’s conduct. The Court of Appeal expressed a similar sentiment, Christopher Clarke LJ observing 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.” Nevertheless, he too understood the facts of this case to fall outside of a sufficiently close connection with Mr Khan’s employment. The Supreme Court has now held that this view of the law of vicarious liability was wrong.
The two developments of note in this case, as stated above, are first, the question of the “seamlessness” with which the wrongdoer’s wrong follows his employment (or analogous relationship); and second, the issue of whether the wrongdoer himself purports to be acting in the course of his employment. It did not matter that beating up customers couldn’t be further from providing customer service. The fact was that Mr Khan purported to act on behalf of his employer. One can imagine that if Morrisons had been asked whether Mr Khan spoke for them when he told the claimant to never come back, the company would have denounced his actions, but that is irrelevant: in Mr Khan’s eyes, he was a loyal servant doing his job. Many more employers and organisations will have further reason to rue the enthusiasm of such servants in the wake of this judgment.
CONOR KENNEDY © 2017
33 BEDFORD ROW
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