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.

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