Earlier this year the issue of vicarious liability made its way to the Supreme Court in the cases of Cox v Ministry of Justice and Mohamud v WM Morrison Supermarkets PLC, leading to an increase in the scope of what employee activities their employers can be found liable for.
The test for finding vicarious liability, established in Lister v Hesley Hall Ltd, was not in question in these cases. The ‘close connection test’, as it is known, is whether the employee’s tort is so closely connected with his employment that it would be just to hold the employer liable. What was in question in these cases was what activities and relationships could be covered by the close connection test, and the resulting judgments confirmed that the test is indeed a broad one.
Cox – Relationship between the employer and employee
In Cox the Claimant worked in a prison as a catering manager and was injured when a prisoner who was employed to work in the canteen accidentally dropped a sack of rice on her back. The question arose as to whether a prisoner carrying out work in a prisonsatisfied the employer-employee relationship.
In the lead judgment, Lord Reed echoed the sentiments of Lord Phillips in the case of Various Claimants v Catholic Child Welfare Society, stating that a finding of the following examples in a case can satisfy the close connection test and therefore make it fair, just, and reasonable to impose vicarious liability on an employer: (i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (iii) the employee’s activity is likely to be part of the business activity of the employer; (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; (v) the employee will, to a greater or lesser degree, have been under the control of the employer.
Lord Reed went on to say that the above examples do not carry equal weight. In particular, points (i) and (v) do not carry great significance, and rather that it is points (ii) to (iv) that are crucial to a finding of vicarious liability.
Applying the above to the facts of Cox, Lord Reed found that they were met in the case, despite it not being an employer-employee relationship in the traditional sense. He stated that prisoners working in prisons are sufficiently integrated into the operation of the prison activities (satisfying example (ii)), the prison was carrying out these activities to aid the furtherance of its aims (satisfying example (iii)), and that in providing work in prisons, prisoners are put in a situation where there is a risk of them committing negligent acts (satisfying example (iv)).
He removed any doubt as to whether the prison service could be held vicariously liable for the acts of prisoners by stating that the fact the prison’s aims were not commercially motivated, but served the public interest, was no bar to the imposition of vicarious liability.
Mohamud – Activities undertaken by the employee
In Mohamud, the Claimant entered a premises belonging to the Defendant and requested to print some documents from a USB stick. An employee of the Defendant became racially abusive and demanded the Claimant to leave, before following him to his car, opening the passenger door to tell him not to return, and punching him in the head. The Claimant then got out to close his passenger door and was subjected to a violent attack by the employee. Throughout these events, the Claimant had not done anything that could be considered aggressive.
The facts of this case raised the question of whether the employees actions could be sufficiently linked to his employment with the Defendant. Again, the aforementioned close connection test was followed. This time, it was primarily examples (ii) and (iii) that were in question.
Lord Toulson, giving the lead judgment, found that despite the aggressive nature of his actions, the employee was indeed working within the field of his activities by ordering the Claimant to leave as it was his job to respond to requests presented by customers (satisfying example (ii)). Additionally, following the Claimant back to his car and ordering him not to return was, in the eyes of Lord Toulson, purporting to act about his employer’s business (satisfying example (iii)). Lord Toulson conceded that the employee’s actions were a gross abuse of position, but well connected to his employment to find the Defendant vicariously liable.
The fact that the Defendant employed the employee and therefore exposed itself to the risk of him acting negligently was easily enough to satisfy example (iv).
It can be seen from the above cases that vicarious liability is not a black and white area of the law that restricts itself to contracted employees acting solely and typically in the course of their employment. Regard must be had to the close connection test, and it must be remembered that this test is broad enough to satisfy relationships and actions which on the face of things do not typically seem to fall under an employer-employee relationship.