Supreme Court Re-Examines Vicarious Liability

Vicarious Liability Definition

Holding a person or entity responsible for the harm/damages caused by someone else. In an employment sense, vicarious liability is the liability assigned to an employer or other principle for their employee’s acts performed during employment.

What sort of relationship has to exist between an individual and a Defendant before the Defendant can be made vicariously liable for the conduct of that individual? And what is the connection between that relationship and the wrongdoer’s act or default (such as to make it just that the Defendant should be held legally responsible to the claimant for the consequences of the wrongdoer’s conduct)?

A relationship other than employment is in principle capable of giving rise to vicarious liability provided that certain conditions are met and there is nothing wrong with the traditional close connection test if properly employed, held the supreme court in (1) Cox v Ministry of Justice and (2) Mohamud v WM Morrison Supermarkets plc.

Cox v Ministry of Justice

Mrs Cox was working as a catering manager at Swansea Prison, when a prisoner working in the kitchen accidentally dropped a bag of rice on her, causing injury. She brought proceedings against the Ministry of Justice on the basis that the prison service, one of its many executive agencies, was vicarious liable. The prisoner was not an employee but was required to work in the prison; he had been specifically selected to work in the kitchen and his work was carried out under the direction of the prison staff. Therefore his work formed part of the operation of the prison providing meals for his fellow prisoners.

Mohamud v VM Morrison Supermarkets plc

In 2008, Mr Mohamud stopped at a petrol station; he was on his way to London and wanted to print some documents on a USB stick. He enquired at a kiosk to see if they could help. The petrol station was part of the Morrisons Supermarkets and their employee, Mr Kahn was behind the counter. Mr Khan was rude to Mr Mohamud and ordered him off the premises with a torrent of threatening and racist abuse. Mr Mohamud returned to his car and Mr Kahn followed him. Mr Khan opened the passenger door and punched Mr Mohamud on the head, and when Mr Mohamud went out to close the door, Mr Kahn continued to assault him.

Outcomes

In Cox, the Court held that a relationship other than employment is in principle capable of giving rise to vicarious liability provided that certain conditions are met. First, harm must be wrongfully done by a person who carries on activities as an integral part of the business or operation carried on by the Defendant for its benefit and second, the risk of a wrongful act being committed must be caused by the Defendant assigning activities to the person in question.

In Mohamud, the Court traced the history of the development of the law of vicarious liability and concluded that there is nothing wrong with the close connection test properly applied. In a case such as this, the Court is to ask itself two questions:

1. What field of activities was entrusted by the employee or was the nature of the job;
2. Was there sufficient connection between the field of activities carried out by the employee for it to be just for the employer to be responsibility.

In this case, the violence was a re-enforcement of Mr Kahn’s order to leave the premises which was sufficiently connected to the job assigned to him that the employer should be held responsible for.

The implications of this go beyond prisons as the Supreme Court has now accepted that vicarious liability can arise where there is no contract of employment but where activities are undertaken that are integral to the business. This approach may be relevant in the context of many modern work places where workers may be part of the work force but without having a contract of employment with it.