Supreme Court – vicarious liability update

UK Supreme Court final

We now understand that the Supreme Court will hear Mohamud v Morrisons  and Cox v Ministry of Justice jointly in October this year. A brief overview of these cases….

In Catholic Child Welfare Society v Various Claimants [2012] UKSC 56 Lord Phillips stated that “the law of vicarious liability is on the move” and it seems clear that the Supreme Court is eager to take another look at it. In Mohamud it will consider the test for vicarious liability of an employer for an employee’s violence towards a customer.

In Fennelly v Connex South Eastern the Court of Appeal in 2000 found an altercation that arose between a passenger and a ticket inspector was job-related and but for the inspection of a ticket the assault would not have occurred. Connex was found vicariously liable for the actions of its employee. Mr Mohamud stopped at a Morrisons petrol station. Having made an enquiry to a Morrisons staff member, Mr Khan, he was subjected by Mr Khan to an unprovoked and violent assault. Mr Mohamud sued Morrisons, but both the Recorder and the Court of Appeal held that Morrisons was not vicariously liable for Mr Khan’s actions.

It seems that Mohamud is listed jointly with Cox v Ministry of Justice. Mrs Cox was a catering manager at HMP Swansea. Each day around 20 prisoners would be assigned to kitchen work. On the relevant day prisoners were carrying sacks of rice up stairs when one sack split open. Mrs Cox instructed all prisoners to stop work until the spillage was cleared up. She bent down on one knee to prop up the damaged sack. A prisoner ignored the instruction to stop and attempted to carry sacks past Mrs Cox, but he lost his balance and dropped one of the sacks onto her back. The accident occurred because of the prisoner’s negligence. The Court of Appeal found that the relationship between the prisoner and the MoJ was “akin to employment” and thus the principal defendant – the MoJ – was vicariously liable to Mrs Cox. This is now being challenged.


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).

Vicarious liability

UK Supreme Court final

The Supreme Courts (SC) is looking at this principle in depth once again – despite thorough analysis in recent years in cases such as Catholic Child Welfare Society v Various Claimants (before the SC) and JGE v Portsmouth (in the Court of Appeal).

The SC has granted permission to appeal in the case of Cox v Ministry of Justice, a claim which turned on whether the defendant should be vicariously liable for the negligence of a prisoner undertaking food service duties in the prison in which he was serving his sentence. The granting of permission in Cox suggests that the Justices are quite prepared to take another look at vicarious liability in the medium term.

Last year Lord Hope, the former deputy President of the SC, delivered an extra-judicial speech on vicarious liability which concluded with the following concerns, which are worth repeating in full…

“It may be … that some further refinement [of vicarious liability] will be needed to meet demands for compensation for sexual abuse of children within the entertainment industry. The precise criteria for imposing vicarious liability in such or other cases have yet to be defined. What are to be taken to be the parameters? What, if enterprise liability is to be the governing principle, is an enterprise? How is  one to determine what is, and what is not, within the range of activities for which those in charge of that enterprise can be fairly held to be vicariously responsible? What part does the risks that the activities may give rise to have to play in that assessment? One must hope that the search for clearly defined criteria, as one moves further and further away from the employer/employee relationship, is not abandoned simply in order to meet the need for a solution on a case by case basis.”


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).