PI Brief Update

Editorial: Vicarious Liability for Assaults - Aidan Ellis, Temple Garden Chambers

24/03/16. In Mohamud v WM Morrisons Supermarkets Plc, the Claimant went into a petrol station, where he was verbally abused by the attendant who was employed by the Defendant. The employee followed him out of the shop and assaulted and battered him. There was some evidence that the employee’s behaviour was racially motivated.

Should an employer be vicariously liable for these kinds of intentional torts committed by employees? The current test requires the Court to consider whether the tort is so closely connected to the employment that it is fair and just to hold the employer liable. But the vagaries of this test are illustrated by the outcome of Mohamud. The Court of Appeal thought that imposing liability would be a step too far because the employment had merely created the opportunity for the tort. The Supreme Court disagreed, holding that the employee’s conduct was within the field of activities assigned to him by the Defendant, that there was no break in the chain of events when the employee followed the Claimant out of the shop and that the employee’s motivation was irrelevant. That application of the test leads to different results before different courts should not be surprising; to ask whether it is fair and just to hold the employer liable is to invite different answers depending on the Court’s perspective.

The Claimant unsuccessfully invited the Supreme Court to move away from the close connection test towards one of ‘representative capacity’. The argument is that a customer-facing employee is held out as a representative of the employer and so there is a sufficient nexus to impose vicarious liability. This would produce certainty in some cases, usually because it would make the employer liable. But it might be more difficult to apply the analysis to other situations (what about assaults by one employee on another employee?).

The alternative is to narrow the scope of vicarious liability rather than broadening it. Outside narrow categories of people employed in security or to keep order, intentional assaults, including sexual assaults, are far away from the duties that the employer pays its employees to carry out. Moreover, whilst negligence can sometimes be controlled or mitigated by proper procedures and risk assessments, it is more difficult to prevent deliberate wrongdoing. What could the employer in Mohamud actually have done to prevent the assault, other than not employ the individual assailant or not operate a petrol station at all? It is difficult to avoid the impression that, in earlier times, the employee’s behaviour would have been regarded as a ‘frolic of his own’ and vicarious liability would not have attached. A return to a stricter test might also be more consistent with the approach taken to employer’s liability generally, for instance the removal of strict liability for breach of statutory duty.

Whatever the merit of the opposing arguments, the decision in Mohamud makes it clear that the test will remain one of close connection. The uncertainty that creates is to some extent mitigated by the array of precedents which assist in deciding which side of the line any given conduct falls. But unless a more prescriptive test is adopted, Mohamud is unlikely to be the last vicarious liability case on which the higher courts disagree.

Aidan Ellis
Temple Gardens

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