Mohamud v WM Morrison Supermarkets Plc [2016] – Vicarious liability

In Mohamud v WM Morrison Supermarkets Plc (Rev 1) [2016] UKSC 11 (2 March 2016) the case concerned vicarious liability. This is a tort which requires, a relationship between the defendant and the person committing the wrong, and then a connection between that relationship and that persons act or default, so as to make it just that they should be held legally responsible to the claimant for the consequences of the conduct of that person.

The background to this case concerned the Claimant who, on the morning of the 15th March 2008 stopped by a petrol station to ask whether they could print some documents from a USB stick he had with him. What followed was accepted by the original trial judge, Mr Recorder Khangure QC.

The Claimant protested at the way he was spoken to by the man behind the counter who had responded to his request with “We don’t do such shit”. After ordering the Claimant to leave, the staff member followed the Claimant to his car where he opened the front door and used threatening words to him. The Claimant asked him to leave his car. The staff member punched the Claimant on his left temple and again after the Claimant went to shut the car door, this time knocking the Claimant to the ground and attacking him. The staff member ignored his supervisor who tried to stop him.

This matter was heard in the Supreme Court before Lord Neuberger, Lady Hale, Lord Dyson, Lord Reed and Lord Toulson who delivered the judgment, with which the other Justices agreed.

Lord Toulson considered the trial judge to have given an impressive and detailed judgment. He had expressed great sympathy for the Claimant but had concluded the Company was not vicariously liable for the staff member’s actions as, although that staff member’s job did involve serving and helping customers the connection was not close enough between what he did and his wrongful conduct towards the Claimant, for the employer to be held vicariously liable. He applied the “close connection” test which had evolved from the case of Lister v Hesley Hall Ltd (2001). Further, the staff member had come out from the counter and followed the Claimant, disobeying instructions.

The case then went to the Court of Appeal where the Judges upheld the trial Judge’s decision that the claim had failed the “close connection” test.

The matter came before the Supreme Court one of the main the grounds of the appeal was that there should be a new test of vicarious liability, a wider test of “representative capacity”, in place of the “close connection” test. They considered that, where a tort is committed by an employee, would a reasonable observer think that the employee was acting in the capacity of a representative of that employer. Lord Toulson observed that the member of staff was the company’s employed representative, it was not just about the closeness of the connection carrying out his duties and his conduct but the setting created by his employer who had placed him in a position of contact and physical nearness to the Claimant.

Lord Toulson examined several cases and in Lister where the House of Lords had to apply the doctrine of vicarious liability to the warden of a school boarding house where the wider question had been was had that warden’s wrongful conduct been so closely connected with his employment that it should hold those employers liable. The conclusion was that the employers were vicariously liable, they undertook to take care of those children through the warden who abused them.

The Supreme Court had to examine two matters

  • What was the nature of the job, “field of activities” given to the employee by the employer
  • Was there enough connection between that job and his wrongful conduct for the employer to be held liable

Lord Toulson in considering all aspects was not persuaded that there was anything wrong with the findings in the case of Lister.

In this matter, the member of staff was employed to see to the customers and attend to their enquiries. His subsequent conduct was unacceptable but within the “field of activities” given to him. Lord Toulson did not agree with the trial judge that the connection stopped when the member of staff left his counter and followed the Claimant out into the forecourt.

Lord Toulson disagreed with this for two reasons:

  • The member of staff did not leave his uniform behind when he left his counter
  • When the member of staff went back to the Claimant’s car using threatening words telling him not to return to the petrol station, this was an order to stay away from the employers’ petrol station. Having remarked this, he was purporting to represent his employer. Although it was a gross abuse of his employment, it was said about the business where he was employed to serve customers.

Lord Toulson allowed the appeal.

Lord Dyson agreed with Lord Toulson’s decision and added his own comments including that it would be difficult to see how the “close connection” test could be improved upon and, that there has not been any satisfactory improvement of this put forward in this matter.

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