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Vicarious liability and the law

Updated: Feb 17

This article focuses on liability and in particular vicarious liability – where one person is held liable for torts committed by another, even though that person did not commit the act itself.

It plays an important part in liability insurances, particularly in the workplace where an employer can be liable for the acts or omissions of its employees.

It is often believed (incorrectly) that vicarious liability only attaches to the employer if it can be shown that the actions of the employee happened in the course of their employment.

Such actions include errors in work but also other matters such as bullying, harassment, violence, discriminatory acts, libel and breach of copyright.

For vicarious liability to be established, there has to be:

  • a relationship between defendant and wrongdoer;

  • a sufficiently close connection between the conduct/wrongdoing and this relationship, so it will be fair and just to hold the employer vicariously liable.

Two recent (March 2016) Supreme Court decisions addressed these issues.

The first, Cox v Ministry of Justice, addressed the relationship between the defendant and wrongdoer, specifically whether the prison service is vicariously liable for the act of a prisoner in the course of their work in a prison kitchen.

The case involved Mrs Cox, a civilian catering manager at HM Prison Swansea. Whilst working with a catering assistant and 20 prisoners, she was injured due to the negligence of a prisoner, Mr Inder.

The initial County Court judgment was based on whether the relationship between the prison service and Mr Inder was akin to that between an employer and an employee. They concluded that it was not, although there were many similarities.

The Court of Appeal reversed this decision. Despite the differences from a normal employment relationship, “the prison service benefitted from the work of prisoners and accordingly they should take its burdens.”

The Supreme Court decision upheld the Court of Appeal decision, which was expected by many commentators.

The second case – Mohamud v Morrison Supermarkets – looked at the wrongdoer’s actions and whether the defendant should be held vicariously liable.

The full judgment provides a detailed history on the law of vicarious liability, citing cases such as:

  • Warren v Henlys (1948),

  • Rose v Plenty (1976),

  • Lister v Hesly Hall (2002) and

  • the Christian Brothers case.

The Mohamud decision is seen as a broadening of the law. In this case, the claimant, Mohamud entered the kiosk of a Morrisons petrol station and asked whether they could print some documents from his memory stick.

Mr Khan, a Morrisons employee, replied in an abusive and racist manner, ordering Mohamud to leave. Khan then followed Mohamud out of the kiosk and carried out a serious assault, during which he ignored instructions from his supervisor who had come over to intervene.

The initial court case concluded that there was not a sufficiently close connection between Khan and Morrisons in terms of Khan’s conduct.

This decision reflected the fact that an employer could argue that an employee was acting for entirely personal reasons if they committed a crime. This is known as being “on a frolic of their own”.

Only in cases where the employment itself involved a risk that a crime could be committed could employers be held liable e.g. nightclub bouncers or residential care home staff.

The Court of Appeal upheld this decision, saying:

“…Khan was not given duties involving a clear possibility of confrontation or placed in a situation where an outbreak of violence was likely. Although his employment involved interaction with customers, this was not enough to make Morrisons liable for his use of violence”.

The Supreme Court, however overturned the decisions. Although Khan performed his job in an inexcusable way, it was within the ‘field of activities’ assigned to him. There was an unbroken sequence of events and a significant connection between Khan’s employment and his behaviour when he followed Mohamud onto the forecourt.

It is important for businesses and other organisations to understand vicarious liability as this ruling makes it easier for customers who are assaulted by staff whilst on duty to hold the employer liable.

Businesses should implement appropriate measures to mitigate the potential effect this might have, e.g. robust recruitment procedures, taking up of references, criminal record checks, staff induction and ongoing training, all of which should be recorded.

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