Vicarious Liability: Broadening the Close Connection Test

Vicarious Liability: Broadening the Close Connection Test

The Supreme Court’s reaffirmation, but more liberal application, of the ‘close connection’ test for an employer’s vicarious liability in Mohamud v Morrison Supermarkets is examined by barrister Adam Ohringer, of Cloisters.

Overview of the case

The Supreme Court agreed with the County Court and Court of Appeal that the test for the vicarious liability of an employer for an act of its employee was whether there was a close connection between what the employee was employed to do and the employee’s tortious conduct. However, applying that test in the instant case, it held that the lower courts had incorrectly found that there was no close connection.

 

What were the main issues arising?

The case raised the question of when an employer will be vicariously liable for intentional wrongdoing by its employees.

The appellant had been a customer at a petrol station operated by the respondent when he was violently attacked by a sales assistant. The respondent denied that it was vicariously liable for the attack because the sales assistant’s actions were not closely related to his employment duties.

The County Court and the Court of Appeal accepted these arguments. They applied the ‘close connection’ test for vicarious liability laid down by the House of Lords in Lister v Hesley Hall Ltd [2001] UKHL 22 and found that it was absent in this case. Although the Court of Appeal recognised that the application of the narrow doctrine of vicarious liability gave rise to a possible injustice in this case, it stated:

‘Our law is not yet at a stage where the mere fact of contact between a sales assistant and a customer, which is plainly authorised by an employer, is of itself sufficient to fix the employer with vicarious liability.’

The question before the Supreme Court was whether the test for vicarious liability, as set out in Lister, should be reconsidered and replaced to ensure a just result.

What test for vicarious liability did the Supreme Court apply?

The court reaffirmed the established test from Lister, namely whether the miscreant’s torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. But it applied the test in such a way as to allow a just result in favour of the appellant.

What did the court decide and why?

Lord Toulson, giving the leading judgment, said that the assailant was employed to attend to customers. His conduct towards the appellant was clearly unauthorised but was within the field of activities assigned to him. Because the assailant’s conduct arose from his position serving customers for his employer, it was just that the respondent be liable for his abuse of that position. Lord Toulson stated:

‘I do not consider that it is right to regard him as having metaphorically taken off his uniform the moment he stepped from behind the counter.’

The appeal was therefore allowed.

Does the decision leave any grey areas?

In reaching its conclusion, the court appears to have applied the Lister test in a very different and more liberal manner than has been allowed in previous cases before the courts at all levels. Previous cases emphasised that vicarious liability would only arise if the miscreant’s employment duties and responsibilities were such that there was a special risk of harm.

The cases which have been successful have therefore involved situations such as nightclub bouncers assaulting club-goers (on the basis that bouncers are employed to keep order, using force if necessary) and wardens in residential homes abusing children in their care (because they are in a position of trust over vulnerable children in an unsupervised setting).

The difficulty with the Supreme Court’s judgment is knowing how it is likely to apply to the various different factual situations which might arise. It is relatively clear that vicarious liability will be established where a shop assistant assaults a customer, but what would be the result if, say, a delivery driver who is employed by a retailer (and is not responsible for dealing with the public) assaults a customer at the employer’s premises, or a shop assistant assaults a colleague while on duty rather than a customer?

What are the practical implications of this decision?

The exact scope of this judgment is difficult to define but it will make it easier to establish vicarious liability in more cases. Employers will want to take extra care with whom they employ and how they are trained to minimise the risk of violence at work. But the risk of wrongdoing by employees cannot be eliminated; and for that employers will wish to check the terms of their insurance.

The broadening of cases in which vicarious liability will arise may assist victims of abuse by Jimmy Savile and others, where that abuse was committed or, perhaps, commenced during their working time.

Adam Ohringer appeared with Joel Donovan QC for the appellant in this case. Interviewed by Robert Matthews.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

This article was first published on LexisPSL. Click here for a free trial.

 

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