Has the time come for a new test of vicarious liability?

Lily Parisi
Lily Parisi

In Mohamud v Morrison Supermarkets [2016] UKSC 11, the Supreme Court had the opportunity to take a fresh look at the age old doctrine of vicarious liability.

The claimant’s ground for appeal was that the time has come for a new test of vicarious liability in order to reflect modern views of justice. In place of the “close connection” test, the courts should apply a broader test of “representative capacity”. In the case of a tort committed by an employee, the decisive question should be whether a reasonable observer would consider the employee to be acting in the capacity of a representative of the employer at the time of committing the tort.

The question presented to the Supreme Court was whether this would be an effective development in this area of law?

FACTS AND BACKGROUND

On 15 March 2008 the Claimant entered the Respondent’s premises in Small Heath, Birmingham which include a petrol station and a kiosk where customers pay for their purchases. Having parked his car he entered the kiosk to ask whether he could print some documents from a USB stick. Mr Amjid Khan was behind the kiosk desk, employed by the Respondent to see that petrol pumps and the kiosk were kept in good order and to serve customers.

There were two or three staff present. Mr Khan, who was behind the counter, replied by saying “We don’t do such shit” in a foul and aggressive manner. The claimant protested at being spoken to like that. Mr Khan responded by ordering the Claimant to leave. Mr Khan then followed the Claimant to his car. Before the Claimant could drive off, Mr Khan opened the passenger door and told the Claimant in threatening words never to return, punching him on the left temple. The Claimant got out the car and walked round to close the passenger door when Mr Khan subjected him to a serious attack.

In carrying out the attack Mr Khan ignored instructions from his supervisor, who came on the scene at some stage and tried to stop Mr Khan from behaving as he did. The judge concluded that the reasons for Mr Khan’s behaviour were a matter of speculation. The Claimant had not said and done anything which could be considered aggressive or abusive.

The Claimant brought proceedings against the Respondent on the basis that it was vicariously liable for the actions of its employee, Mr Khan.

The Trial Judge’s Decision

The trial judge expressed great sympathy for the claimant but concluded that the supermarket was not vicariously liable for Mr Khan’s unprovoked assault.

His principal reason was that although Mr Khan’s job involved some interaction with customers and members of the public who attended the kiosk, it involved nothing more than serving and helping them.

Applying the “close connection” test laid down in Lister v Hesley Hall Ltd [2001] UKHL 22 (which was followed in subsequent case law), the trail judge concluded that there was not a sufficiently close connection between what he was employed to do and his tortious conduct for his employer to be held vicariously liable.

The Court of Appeal’s Decision

The Court of Appeal upheld the trial judge’s decision that the claim against the supermarket did not satisfy the “close connection” test on the grounds that:

  • Mr Khan was not given duties involving a clear possibility of confrontation or placed in a situation where an outbreak of violence was likely.
  • The fact that his employment involved interaction with customers was not enough to make his employers liable for his use of violence towards the claimant.

It is interesting to note here that Christopher Clarke LJ added that if the question had been simply whether it would be ‘fair and just’ for the supermarket to be required to compensate the claimant for his injuries from the assault, there would be strong grounds for saying that it should.

On the facts of the case, it could be said that the employer could fairly be expected to bear the cost of compensation, rather than that the victim should be left without any civil remedy except against an assailant who was unlikely to be able to pay full compensation. However, he concluded that this was not the legal test, and that the fact that Mr Khan’s job involved interaction with the public did not provide the necessary degree of connection between his employment and the assault which was required for the supermarket to be held vicariously liable.

From my understanding, it appears that Christopher Clarke LJ is expressing some degree of doubt upon the current law if he is indeed going on to discuss a possible alternative legal test. Is he accepting that the current law is potentially flawed and in need of some reform?

Grounds for appeal: The claimant argued that the courts should apply a broader test of “representative capacity” to replace the current test of “close connection.” He argued what mattered was not just the closeness of the connection between his duties to his employer and his tortious conduct, but the setting which the employer himself had created. In this case the employer created the setting by putting the employee into contact and close physical proximity with the claimant.

THE UK SUPREME COURT

JUSTICES: Lord Neuberger, Lady Hale, Lord Dyson, Lord Reed and Lord Toulson.

The Supreme Court unanimously allowed the Claimant’s appeal and held the Respondent vicariously liable for the actions of its employee, Mr Khan, in attacking the Claimant. Lord Toulson delivered the lead judgment.

However, Lord Toulson clarified that the close connection test has been followed at the highest level and there was nothing wrong with that test as such.

Lord Toulson concluded that the Court had to consider two matters.

  • The court must ask what function or field of activities has been entrusted by the employer to the employee and
  • Whether there was a sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable.

Regarding the first element, Mr Khan’s conduct in answering the claimant’s request in a foul mouthed way and ordering him to leave was inexcusable but within the “field of activities” assigned to him. It was Mr Khan’s job to attend to customers and to respond to their inquiries.

In regards to the second element, Lord Toulson disagreed with the Court of Appeal’s view that there ceased to be any significant connection between Mr Khan’s employment and his behaviour towards the claimant when he came out from behind the counter and followed the claimant onto the forecourt.

Firstly, he said ‘I do not consider that it is right to regard him as having metaphorically taken off his uniform the moment he stepped from behind the counter. He was following up on what he had said to the claimant.’ He argued this was a seamless episode.

Secondly, Lord Toulson believed that when Mr Khan followed the claimant back to his car and told the claimant again that he was never to come back to petrol station, that this was not something personal between them. He stated ‘it was an order to keep away from his employer’s premises, which he reinforced by violence and in giving such an order he was purporting to act about his employer’s business. It was a gross abuse of his position, but it was in connection with the business in which he was employed to serve customers. His employers entrusted him with that position and it is just that as between them and the claimant, they should be held responsible for their employee’s abuse of it.’

He further concluded that Mr Khan’s motive in the attack is irrelevant. It does not matter whether he was motivated by personal racism rather than a desire to benefit his employer’s business.

Lord Dyson agreed with the reasons given by Lord Toulson and emphasised that the close connection test is the correct test to apply.

COMMENTS

I strongly agree with the outcome of this case however I am less convinced that this area of law is in no need of reform. Lord Dyson expresses that the proposed new test is hopelessly vague as he questions “representative capacity” actually means in this context. Whilst I can see the difficulties in applying this concept, I am unsure whether no reform at all is the best solution. As previously mentioned, Clarke LJ mentioned a possible new legal test which suggests signs of a weak current law which is not entirely backed and respected. I think Clarke LJ may have been onto something when he proposed this argument.

What I find difficult to comprehend is that Lord Dyson accepts that this test is imprecise but justifies it on the grounds that imprecision is inevitable. I find it problematic to accept that this is the case and in fact I query whether the judges are reluctant to make any changes to this area of law on the basis that it might be too complex or controversial. It appears Lord Dyson tries to justify this imprecision of the law by discussing how many aspects of the law of torts are inherently imprecise. He uses the example of the imprecise concepts of fairness, justice and reasonableness which are central to the law of negligence. I disagree with the view that these aspects are ‘inherently imprecise’ and I ask whether the law of torts is actually in need of some general reform.

Lord Dyson says that the test ‘should only be abrogated or refined if a demonstrably better test can be devised’, but I believe a conscious effort should be made to develop a new, more effective test which reflects modern day justice. Lord Dyson adds that the attraction of the close connection test is that it is firmly rooted in justice. I feel as though this is a poor justification as the current law has been the same for over thirteen years, therefore it cannot reflect modern views of justice. I think the time has come for some much overdue reform.

Responsible self-promotion: negotiating the relationships between self and Other, myself and ‘my’ work

Alison Phipps
Alison Phipps

This is the text of a talk I was invited to give at Sussex university on February 18th 2016, to a group of PhD students and early-career researchers. It was published originally on my genders, bodies, politics blog.

publicintellectual

‘Responsible self promotion’. I think that is probably an oxymoron. Responsibility implies being accountable to something other than the self: the act of promoting the self is by definition, selfish. Is it possible to both promote the self and be accountable to the Other? I think the answer is ‘probably not’. But self-promotion is increasingly part of academic life: our readerships and research ‘impact’ are metricised by systems of reward and punishment like funding streams, league tables, and the REF. For early career researchers, precarious employment depends on being able to narrate the self in a marketable fashion. For those in mid- to late-career stages, promotion is reliant on self-promotion: rising up the ranks means evidencing, usually for a committee, our intellectual, political and cultural reach. How do we negotiate these demands for exposure in appropriate and sensitive ways?

I’m a social researcher. My work is to generate socially useful knowledge with a number of others: in my current projects, women and people of other genders who are navigating the challenging context of contemporary higher education. Many of these people are survivors of discrimination, harassment and assault. Some are working in the sex industry to pay their fees and maintenance. Many are vulnerable; some are socially marginalised; almost all tell me difficult or uncomfortable things about their lives and trust me to narrate these in thoughtful and honest ways. This is an intimacy between self and Other which is also at play when I think about the act of promoting my work. To promote this work as ‘mine’ means to devalue the work these Others have contributed: time, emotional labour, co-production of ideas through long, and in some cases repeated, conversations. To promote this work as ‘mine’ also often leads to being asked to speak for, or over, the Other.

If I want to attempt to be responsible in my self-promotion, I need to honour the relationship between self and Other. I also need to be mindful of the boundary between myself and my, or more accurately our, work. This involves thinking very carefully about the role of the ‘self’ in what is being promoted. It also means seeing the Other as broadly defined, not just as my particular research participants but the communities and groups they represent. There are important ethical and political questions about who ‘owns’ different forms of knowledge, and who gets to speak those knowledges in the public realm. As my work has entered different publics – academia, policy, civil society and the media – I have found it more and more necessary to be clear on what exactly I am offering and what I am being asked to give. Am I claiming ownership of something it’s not really mine to possess? Am I being asked to speak to the work, or to speak for or over the Other?

When considering these questions I have found it useful to make distinctions between the work of specialist research and the general issues affecting the populations I create knowledge with. I may understand my project of data collection better than anyone else in terms of its rationale, methodology, ethics and analysis. But even the most detailed ethnography is only a freeze-frame in a bigger production: so my work does not give me comprehensive insight into the deeper and broader realities and experiences of the groups with whom I study. These boundaries are permeable: many of the topics I research, I have lived through myself. But my experience is not someone else’s, especially if I am at an advantage because of my social location and institutional position. As a professional researcher I am rarely a community ‘insider’, so I should not set myself up to speak as one, over people who are more than able to speak for themselves. Being responsible means focusing on the work, and not letting the demands of the self lead me to sideline the Other.

I don’t always manage this. But I am learning to ask myself: should I occupy this platform, or should I get out of the way? As the platforms get bigger and more elevated, questions about self and Other get louder and more urgent. The relationship between myself and the work also becomes more problematic: having a public profile makes it likely that you will be asked to comment on issues and areas which are only adjacent to your specialism. The ‘self’ begins to grow: you begin to be seen as an all-purpose ‘expert’, a talking head who can offer their opinion on matters faintly connected, or sometimes wholly unconnected, to the work they do. You are becoming a ‘public intellectual’.

Who is this public intellectual? He is usually (but not always) a man; more often than not, he is white and middle class and occupies other positions of privilege. This reflects continued structures of inequality and dynamics of visibility/invisibility in academia, the media, and the political arena. He is normally of a certain age, having built his profile over the course of a career. Now he has ‘arrived’ his portfolio is broad, covering areas of which he may have little or no academic knowledge or experience. He is the embodiment of expertise: it literally resides in his physical and intellectual presence. For Marx, the intelligentsia were the source of progressive ideas for the work of social transformation. There are obvious power dynamics in this: it positions the Other as part of a rank and file which needs to be educated and does not do the educating.

We are often asked to accept public intellectuals as inherently progressive and not in need of educating. But is this really the case? Consider the famous evolutionary biologist (and infamous atheist), who recently said ‘to hell with their culture!’ in a chat show discussion about Muslims. He has also made statements on the ‘immorality’ of failing to abort a foetus diagnosed with Down’s syndrome, and on how some rapes are ‘worse’ than others. He has offered commentary on transgender rights, some of this in support of a prominent radical feminist intellectual whose chatter about trans women is worthy of a Daily Mail headline writer. She has confirmed that trans issues are not her intellectual focus: nevertheless, she has not felt unqualified to comment. This willingness to claim unfamiliar territory also brings to mind the famous political philosopher who led the support for Julian Assange, seeing the rape allegations against him through an anti-establishment framework devoid of gender.

For me, these act as cautionary tales, of what can happen when the ‘public’ consumes the ‘intellectual’ in all sorts of ways. Contrary to the idea of the superstar scholar with privileged insights into almost all areas of life, the social privilege of these public intellectuals is often what leads them to misunderstand and make mistakes in relation to marginalised communities. When the ‘self’ displaces the work like this, the Other is not only forgotten, but spoken over and oppressed. Of course, this is not how the public intellectual sees it; to him, he is being oppressed, by a rabble of over-sensitive students and identity-obsessed ‘keyboard warriors’ who are agitating against his speech. His voice is remarkably loud for someone who is being silenced: debates about whether such public intellectuals should be allowed the right to unfettered speech tend to overshadow concerns about Prevent, crackdowns on student protest, the planned criminalisation of boycotts and divestment policies, and other very real threats to academic and political freedom.

I am not a public intellectual and I do not wish to become one. But I do share some of their privileges, not least the privilege of being offered, and granted, platforms on a regular basis. I have also, on many occasions, found myself in a position of being asked to speak for or over the Other, as part of discussions about ‘my’ work. Too many times, I have slipped up and done it. This makes me question myself and my work, and what it means to promote either. What is it responsible for me to talk about? How far should I stray beyond my own areas of expertise and the research work I have done? What are the boundaries between discussing this research, offering my opinion, and ventriloquising other people’s experiences? I need to ask these questions consistently, to improve my academic and political praxis. I need to be mindful of the relationships between self and Other, and the boundary between myself and ‘my’ work. I’m not sure there is such a thing as ‘responsible self-promotion’, but if there is, I hope this is how it starts.

Alison Phipps is a Reader in Sociology at the University of Sussex