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Vicarious liability – refined, not redefined

Cox v Ministry of Justice [2016] UKSC 10 --- Mohamud v Morrison Supermarkets [2016] UKSC 11

The law on vicarious liability has been on the move for some time – mostly in the direction of imposing greater liability on employers, or on quasi-employers such as religious organisations. The Supreme Court has recently handed down judgment in two related cases, heard together, and in so doing Lords Reed and Toulson took the opportunity to restate and develop the law in this area.

Cox concerned a prisoner, Mr Inder, put to work in a prison kitchen, who negligently dropped a sack of rice on a prison officer’s back, causing her injury. Mr Inder, paid as he was £11.55 per week for his labours, was hardly worth suing. The Ministry of Justice, however, said that as he was not its employee, it was not vicariously liable for his negligence, effectively leaving Mrs Cox without a remedy. HHJ Keyser QC, at first instance, had agreed with the MoJ. The Court of Appeal had allowed Mrs Cox’s appeal on the basis that the Prison Service took the benefit of Mr Inder’s work – if he had not been working in the kitchen, they would have needed to hire staff from outside the prison to do the work – and so it should take the burden. The fact that he was bound to work not by any contract of employment, but by his prison sentence, made the relationship between the parties even closer than a usual employment relationship would be.

The Supreme Court drew on five policy reasons set out by Lord Phillips in Christian Brothers [2012] UKSC 56 at [35] which have frequently been advanced for imposing liability on an employer, namely (paraphrasing):

  • the employer is more likely to have the means to compensate, and to be insured
  • the tort will have been committed as a result of activity undertaken by the employee on the employer’s behalf
  • the employee’s activity is likely to have been part of the employer’s business activity
  • by employing the tortfeasor, the employer will have created the risk of the tort occurring
  • the employee will have been under the employer’s control

The first factor, Lord Reed said, will not normally be a good reason for imposing liability on an employer. The fifth factor no longer has the significance it once did, although if a Defendant had no control at all over how the tortfeasor went about his work, that would tend to negative vicarious liability. The remaining factors are clearly inter-related. The correct approach to questions of vicarious liability, Lord Reed said in Cox at [30], is not to be misled by semantics. The Defendant does not need to be carrying out any business, in the ordinary sense of the word, and there certainly need not be any profit. “It is sufficient that there is a defendant which is carrying on activities in the furtherance of its own interests. The individual for whose conduct it may be vicariously liable must carry on activities assigned to him by the defendant as an integral part of its operation and for its benefit. The defendant must, by assigning those actitivies to him, have created a risk of his committing the tort… a wide range of circumstances can satisfy those requirements.” Mr Inder’s work was part of the operation of the prison. It was easily sufficient to satisfy the requirements of vicarious liability.

In Mohamud, there was no question that the tortfeasor, a Mr Khan, was employed by the Defendant supermarket at its petrol station. The issue was whether the tort – beating up the Claimant in what appeared to be an unprovoked racist attack – was the sort of act for which the Defendant should be vicariously liable. The trial judge and the Court of Appeal found that there was no “close connection” between Mr Khan’s employment and his actions. He was meant to help customers from behind a counter, not chase them onto the forecourt and kick them in the head.

Counsel for Mr Mohamud sought to persuade the Court that the existing test for vicarious liability was unsatisfactory and should be replaced by a new test, namely whether a reasonable observer would consider the employee to be acting in the capacity of a representative of the employer, or as its “human embodiment”, at the time of committing the tort. The Supreme Court, with the leading judgment given by Lord Toulson this time, rejected that suggestion, saying at [46] that “the more the argument developed, the less clear it became whether the claimant was advocating a different approach as a matter of substance and, if so, what the difference of substance was”.

After a comprehensive and erudite review of the authorities on vicarious liability dating back to the late seventeenth century (when Holt CJ apparently said in Tuberville v Stamp (1698) SC Comb 459 that the rule was that “if my servant doth anything prejudicial to another, it shall bind me, when it may be presumed that he acts by my authority, being about my business”), Lord Toulson reaffirmed the modern test as being whether or not there is a sufficiently close connection between the tort and the employment to make it just for the employer to be held vicariously liable. The first question to ask is what the nature of the employee’s job is, in broad terms. The second is whether there is sufficient connection between the position in which he is employed and the wrongful conduct to make it right for the employer to be held liable i.e. did the employee use or misuse the position entrusted to him in such a way as to injure the third party. In Mr Mohamud’s case, the Court found that Mr Khan did abuse the position which his employers had entrusted him with, so they were liable.

Taking Mohamed and Cox together, the Supreme Court has not changed the semantics of vicarious liability. Courts will still have to go on asking themselves whether the tortfeasor was acting on the Defendant’s behalf, or whether or not there was a close connection between the employment and the tort. The results in both cases, however, have tended to extend the scope of vicarious liability to cases where judges in the lower Courts had thought it would not apply. As Lord Reed said in Cox at [1], "”The law of vicarious liability is on the move”… It has not yet come to a stop”.

Ross Beaton / 10th Mar 2016


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