Vicarious liability: connections, customers and convicts

The Supreme Court’s decisions this morning in two joined cases both restate and further refine our understanding of vicarious liability in employers’ liability and associated claims.  The facts of each were reported in a blog last week and in both decisions today the claimants succeeded, unanimously in each case. The outcome is probably more surprising in the case of Mohamud than it is in the case of Cox. Even so, reading the cases together strongly suggests that the law on vicarious liability has not fundamentally changed. What the Supreme Court has done is to apply it differently than the Court of Appeal to both sets of facts.

Legal responsibility for the wrongful actions of an individual will be placed on another (i) where the person (the wrongdoer) is employed or in a relationship akin to employment and (ii) where the wrongful act is closely or sufficiently connected to that relationship.

Lord Toulson gave the leading opinion in Mohamud and set out at length the evolution of the law on this point, based on which he “[did] not see that the law would be improved by a change of vocabulary.” Lord Dyson agreed and added that “the attraction of the close connection test is that it is firmly rooted in justice [and] it is difficult to see how the close connection test might be further refined.”

In applying the current and correct legal test, the Supreme Court held that Morrisons should be liable for an unprovoked violent assault committed by its employee on a customer. For Lord Toulson, the assault “was a gross abuse of his position, but it was in connection with the business in which he was employed to serve customers. His employers entrusted him with that position and it is just that as between them and the claimant, they should be held responsible for their employee’s abuse of it.”

It is worth noting that on similar facts, in Vackuviene v J Sainsbury, the Scottish Courts reached a different outcome and held that the retailer would not be vicariously liable for the violent attack carried out by its employee. That case does not – perhaps surprisingly in the circumstances – appear to have been brought the Supreme Court’s attention here.

It is not difficult to understand why the application of the law to the facts in Mohamud was tested at the highest judicial level, particularly since a string of cases has established vicarious liability where assaults have been committed on customers by employees euphemistically referred to as ‘door supervisors’.

The need to question the application of the ‘close connection’ test in the Cox case seems a good deal less apparent. Mrs Cox was injured as a result of a negligent act of a prisoner who was working in the prison food service team as part of the activities he was required to undertake during his incarceration.

The negligent prisoner was not an employee, but had he and his peers not been helping in the kitchens the MoJ would have had to employ staff directly or arrange for outside contractors to perform the work. The MoJ was clearly taking the benefit of his activity and it should therefore bear the burden, meaning it should be vicariously liable for his actions.

It is far from difficult to see that the relationship between the MoJ and the prisoner was characterised by a much higher degree of control than exists in the case of employees. Equally, the connection between his negligent act and that relationship was clear. It would be just and fair for the Ministry to be vicariously liable. Lord Reed – who gave the only judgment – was very clear that finding the MoJ liable here was not a radical approach: “it does not appear to me that this case involves a major development of the law. The conclusion… follows from the application of the approach laid down in the Christian Brothers case.” [In which the Supreme Court set, in 2012, the test for vicarious liability in non-employment relationships as being a sufficient connection between the wrongful act and the relationship in question.] Furthermore – in case the point needed putting beyond any doubt – Lord Reed added that “defendants cannot avoid vicarious liability on the basis of technical arguments about the employment status of the individual who committed the tort.”

Although there was no previous direct judicial authority on the facts in Cox, imposing various liability here does seem an entirely foreseeable result of the sufficient connection test.

About the Author

akAlistair Kinley is BLM’s Director of Policy & Government Affairs.

Alistair is responsible for BLM’s engagement with government departments and regulators on policy and public affairs issues and consultations affecting the firm and its customers. He coordinated BLM’s market-facing activities in connection with the Insurance Act 2015 and the consultations which preceded its publication and introduction in Parliament.

He is a member of the Civil Justice Council (CJC), a regular speaker and experienced commentator on legal and procedural reforms and was a contributing editor to the Law Society’s Litigation Funding Handbook (September 2014).


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