Sharan Sanghera comments on Cox v Ministry of Justice [2016] UKSC 10 and A M Mohamud v WM Morrison Supermarkets PLC [2016] UKSC 11 and their implication for Vicarious Liability

8th March 2016

In two complementary judgments handed down last week the Supreme Court considered the approach to be adopted in deciding whether a relationship other than one of employment can give rise to vicarious liability and clarified the “close connection” test of vicarious liability.

Cox v Ministry of Justice [2016] UKSC 10

The claimant worked as a catering manager at a prison.  Several prisoners were engaged in paid work within the kitchen under the claimant’s supervision.  One of the prisoners was carrying a heavy sack when he lost his balance and dropped a sack onto the claimant’s back, causing injury.  It was accepted by both parties that the prisoner had acted negligently.

The claim was dismissed at first instance.  The claimant’s appeal was allowed in the Court of Appeal.  The Supreme Court heard the MOJ’s appeal against the finding that it was vicariously liable.

The general approach to be adopted in deciding whether a relationship other than one of employment can give rise to vicarious liability was explained in Christian Brothers UKSC 56 [2013] 2 A.C. 1, which set out five factors to be considered in deciding whether it was fair, just and reasonable to impose vicarious liability:

(i)    the employer is more likely to have the means to compensate the victim that the employee;

(ii)   the tort will have been committed as a result of activity being taken by the employee on behalf of the employer;

(iii)  the employee’s activity is likely to be part of the business activity of the employer;

(iv)  the employer, by employing the employee to carry on the activity, will have created the risk of the tort committed by the employee;

(v)   the employee will, to a greater or lesser degree, have been under the control of the employer.

The Supreme Court upheld the Court of Appeal’s decision. Whilst the Supreme Court considered the factors as set out in the Christian Brother’s case,  Lord Reed (giving the judgment of the Court) held that these factors are not all of equal significance. The court explained that the first and last factors are not as significant as the three inter-related factors at (ii) to (iv) above.  In considering each of the requirements it was held that prisoners were integrated into the operation of the prison so that that the activities assigned to them formed an integral part of the activities which the prison carries on in the furtherance of its aims i.e. in providing meals to its prisoners.  Prisoners were placed in a position where there was a risk of them committing a variety of negligent acts and the work was done under the direction of prison staff.  The five requirements were met and so the prison service was vicariously liable to the claimant.

In Cox it was explained that it is not essential to the imposition of vicarious liability that the defendant should seek to make a profit and nor is it necessary to conduct a subjective test on the mind of the tortfeasor to establish whether the objectives of the defendant and tortfeasor stand in alignment.  Once the criteria are met it is not generally necessary to reassess the fairness of the result although some value might be taken in performing the fairness test where liability was being imposed in new circumstances.

Appeal dismissed.

The full text of the Judgement can be found by following this link.

A M Mohamud v WM Morrison Supermarkets PLC [2016] UKSC 11

The claimant was a customer to a petrol station kiosk run by the defendant’s supermarket.  The customer approached one of the defendant’s employees with an enquiry, it being the employee’s job to serve customers.  The employee responded with foul-mouthed abuse and ordered the claimant to leave following him into the forecourt where he subjected him to a violent and unprovoked assault.  Sadly the claimant died of unrelated causes before trial.

At first instance the claim was dismissed by the judge who held that the supermarket was not liable because there was no sufficiently close connection between the assault and what the employee was employed to do.  The Court of Appeal upheld the trial judge’s decision.

The claimant appealed, submitting that there should be a new test of vicarious liability.

The court declined to set down a new test but gave guidance on how the test as established in Lister v Hesley Hall Ltd [2001] UKHL 22, and Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48 might be simplified.  There are two matters to be considered:

(i)    what functions had been entrusted by the employer to the employee;

(ii)   whether there was sufficient connection between the employee’s wrongful conduct and the position in which he was employed to make it right for the employer to be fixed with vicarious liability.

It was the employee’s job to attend to customers and to respond to their inquiries.  As such his response to the claimant’s query was within the “field of activities" that had been entrusted to him by the supermarket.  The assault that followed on was part of an unbroken sequence of events and it was relevant that the employee was giving the claimant orders to keep away from the supermarket premises.  It was a gross abuse of his position but it was still in connection with the business in which he was engaged i.e. serving customers.  As the supermarket entrusted their employee with such a position they should be held responsible when their employee abused that position.  The motive for the assault was irrelevant.

Appeal allowed.

The full text of the judgment may be found by following this link. 

The significance?

The decision of the Supreme Court in Cox was perhaps less surprising on the facts than the decision in Mohamud. The work that the prisoner was engaged with was clearly for the prison’s benefit and his renumeration must be irrelevant.  The obligation on employers to provide training to its workers, regardless of whether they fit the tradition employer-employee definition of employment, has been reinforced.

In Mohamud the Supreme Court was not persuaded that it was necessary to establish a new test to replace the “close connection” test.  Arguably the case broadens the scope of vicarious liability with the question being whether there is a link between the act or omission and the “field of activities” entrusted to the employee.

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