26.29A M Mohamud v WM Morrison Supermarkets PLC [2016] UKSC 11, [2016] AC 677
An employer is vicariously liable for the tortious action of an employee when there is a sufficiently close connection between the tortious action and what the employee had been employed to do, as when an employee abuses the position entrusted to him
Facts: Mr Mohamud, a customer, approached a member of staff of Morrison’s (‘K’) with an enquiry but K responded with foul-mouthed abuse and a violent assault. The customer sued for damages but lost in the High Court and Court of Appeal on the basis that, although K’s employment involved interaction with customers, that was insufficient to fix Morrison’s with vicarious liability because there was an insufficiently close connection with the assault and what K had been employed to do. Mr Mohamud submitted there should be a new test of vicarious liability in which the courts applied a ‘representative capacity’ test, rather than a ‘close connection’ test.
Judgment: the Supreme Court (Neuberger, Hale, Dyson, Reed and Toulson JJSC) held that the ‘
close connection’ test in
Lister v Hesley Hall1[2011] UKHL 22, [2002] 1 AC 215. and
Dubai Aluminium Co Ltd v Salaam2[2002] UKHL 2 AC, [2003] 2 AC 366.was to be applied although a simplification of the essence of the test was desirable:
44. In the simplest terms, the court has to consider two matters. The first question is what functions or ‘field of activities’ have been entrusted by the employer to the employee, or, in everyday language, what was the nature of his job. As has been emphasised in several cases, this question must be addressed broadly; see in particular the passage in Diplock LJ’s judgment in Ilkiw v Samuels included in the citation from Rose v Plenty [1963] 1 WLR 991, 1004 at para 38 above, and cited also in Lister by Lord Steyn at para 20, Lord Clyde at para 42, Lord Hobhouse at para 58 and Lord Millett at para77.
45. Secondly, the court must decide whether there was 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 under the principle of social justice which goes back to Holt. To try to measure the closeness of connection, as it were, on a scale of 1 to 10, would be a forlorn exercise and, what is more, it would miss the point. The cases in which the necessary connection has been found for Holt’s principle to be applied are cases in which the employee used or misused the position entrusted to him in a way which injured the third party. Lloyd v Grace, Smith & Co, Peterson and Lister were all cases in which the employee misused his position in a way which injured the claimant, and that is the reason why it was just that the employer who selected him and put him in that position should be held responsible. By contrast, in Warren v Henlys Ltd any misbehaviour by the petrol pump attendant, qua petrol pump attendant, was past history by the time that he assaulted the claimant. The claimant had in the meantime left the scene, and the context in which the assault occurred was that he had returned with the police officer to pursue a complaint against the attendant.
It had been K’s job to attend to customers and respond to their enquiries and his conduct in answering Mr Mohamud’s request in a foul-mouthed way was inexcusable but within the field of activities assigned to him and, when K followed Mr Mohamud outside and ordered him to leave, reinforcing that order with violence, he was forcing Mr Mohamud to leave Morrison’s business premises and he was purporting to act in furtherance of his employer’s business: since Morrison’s had entrusted K with serving customers it was just that Morrison’s should be held responsible for his abuse of that position.