Professor Glanville Williams wrote in 1957 that “the master is liable because he has a purse worth opening. The master is frequently rich, and he is usually insured.” In the six decades since, a plethora of cases involving vicarious liability of ’masters’ has been considered and the principle has been expanding at some pace. Its boundaries have been tested in cases raising vicarious liability for acts of violence and sexual abuse; these replacing the less complex accident settings and the “course of employment” test of the past.
On 12 and 13 October the Supreme Court heard the cases of Cox v Ministry of Justice (MoJ) and Mohamud v Morrisons Supermarkets that once again brought vicarious liability under the spotlight. The Justices were invited to focus on the meaning of “in a representative capacity” and “in close connection with employment” and to add greater clarity to these tests – not necessarily an easy task. This post comments on the recent hearings and the issues in both cases.
Cox v Ministry of Justice
Mrs Cox was catering manager at HMP Swansea and was injured in 2007 in an accident caused by the negligence of a prisoner carrying out duties under her supervision in the prison kitchen. Her claim that the Prison Service (part of the MoJ) was vicariously liable for the negligence of the prisoner failed at first instance. The Court of Appeal overturned the decision of the judge (who had refused permission to appeal) and held that the MoJ was vicariously liable.
In the Supreme Court, the MoJ argued that work undertaken by inmates was for rehabilitation purposes and in the public interest as they were being trained for gainful employment when released. As such, its submission was that no vicarious liability should attach.
Attempts were made to draw distinctions between work essential to the functioning of the prison, non-essential work and whether work would be done by a third party if not by an inmate. Lord Toulson commented that heavy weather was being made in relation to “essential” and “non-essential” paid work, particularly with regard to, say, the growing of vegetables compared to growing flowers in the prison garden. Lady Hale explored whether inmates had a liability for income tax and national insurance, even though they were paid £11.55 per week, and tried to establish the employer/employee status. She was advised that prisoners have no tax or NI liability. [However, a quick check of Prison Service Order No 4460 (section 2.8.1) states that “Prisoners earning over the normal thresholds for Income Tax and National Insurance contributions are not exempted from these payments”]. Lord Neuberger suggested the distinction could be between paid and non-paid work [you can see where that is going].
The claimant (as respondent) submitted that if inmates were employed in place of a contractor, then the Prison Service must accept the associated risks. Therefore, putting aside the strict employment law status of an inmate, vicarious liability must flow from a negligent act performed when undertaking paid work. This is a persuasive argument. We suggest it is quite difficult to see the basis on which the Supreme Court would overturn the Court of Appeal ruling and release the Prison Service from being vicariously liable for what might be characterised as quasi-employment of an inmate.
Ahmed Mohamud & Morrisons Supermarkets
This case raises a different question in relation to vicarious liability and arose from an unprovoked attack by a Morrisons employee on a customer.
Mr Mohamud, of Somali descent, stopped at a Morrisons petrol station to check his tyre pressures. Having made an enquiry of an employee, Mr Khan, he was subjected to abusive and racist language and then violently assaulted on the forecourt by Khan. Mr Mohamud had not behaved offensively or aggressively. Khan had made a positive decision to leave his kiosk and attack Mr Mohamud in a brutal and unprovoked manner purely, it appeared, for reasons of his own. The Recorder and the Court of Appeal held that Morrisons was not vicariously liable for Khan’s actions.
The Supreme Court heard that there was no difficulty in satisfying the first of the two-stage test set out in Lister v Hesley Hall in that the relationship between Khan and Morrisons was clearly that of employee and employer. Focus was on the second part of the test and whether there was sufficient close connection between the wrongdoing and employment so that it would be fair and just to hold the employer vicariously liable?
It was clear that Khan’s duty was not to keep public order in the sense of a doorman, but to ensure that the petrol station was in good running order and to assist people if at all possible, but no more than that. His duties included interaction with customers, but he had specific instructions and training not to confront customers who were abusive and/or angry.
The Supreme Court was invited to examine the “close connection” test, the “representative capacity” test and the extent of risk attached to an employer’s enterprise. It was argued by the claimant appellant that there was close connection, that Mr Khan was acting in a representative capacity and that the employer’s enterprise created a risk that was placed in the community [although perhaps it hardly seems foreseeable that an unprovoked employee would attack a customer].
A raft of cases was cited in an attempt to demonstrate that the close connection and representative capacity tests were incapable of providing predictable outcomes. Lady Hale described the vicarious liability test along the lines of not being wholly satisfactory, but the best we’ve got. Clarity was required, but little original thought emerged to redefine the tests during the hearing. Indeed, Lord Neuberger asked whether any academics had proposed tests with greater precision (a point which could be explored further).
The defendant respondent was very supportive of the Court of Appeal’s unanimous decision and focused on the fact that Khan took it upon himself to come from behind the till, to leave the kiosk and to enter the forecourt to commit the assault.
The Justices seemed unconvinced that Khan’s actions were closely connected with his employment or that he had a role with some obligation to keep order or manage potential confrontation. Merely wearing the uniform of an employer should hardly give rise to vicarious liability for acts so far removed from employment or the foreseeable risk of the employer’s enterprise. Should these last points resonate with the Justices, then it would seem unlikely that they would interfere with the Court of Appeal’s decision – unless some radical changes are in train.
The question for the Supreme Court is whether greater clarity can be added to the existing vicarious liability test to introduce more predictable outcomes? The Cox and Mohamud cases may offer an ideal opportunity to do so, although our view is that the Supreme Court appears to face a real challenge in reaching conclusions different from those in the judgments which were appealed.
Whatever the Court decides will be worth studying in detail, not least given the prospect of the civil law on vicarious liability coming under further pressure in the future because of the various current investigations and inquiries examining liability for incidents of sexual and physical abuse.
About the Author
Jef Mitchell is a consultant at BLM and former Chief Claims Officer at the Ministry of Defence where he regularly briefed Ministers on claims issues and risk management. He now helps to lead the firm’s Policy and Government Affairs work with Alistair Kinley preparing submissions and supporting evidence for consultations and reform proposals, in addition to liaising with government departments and regulators on key issues and consultations affecting the firm and its clients. Jef is also an accredited mediator.