9 March 2016 | Comment | Article by Stephanie Eedy
Recently the Supreme Court (“SC”) has given its verdict on long awaited appeals in two employer’s liability cases: Cox –v- MOJ and Mohamud –v- WM Morrison Supermarkets both came to the Court of Appeal in 2014. They both address issues of vicarious liability.
Cox was a catering manager employed by HM Prison Swansea. She injured her back when a prisoner (working for a nominal wage within the kitchen) dropped a sack onto her. The claimant lost at first instance, winning on appeal.
Mohamud was the customer who attended a petrol station at Morrisons. He asked the employee behind the counter to print something from his USB stick. The employee refused, was abusive and followed Mohamud to his car in the forecourt where he ordered Mohamud not to return and physically assaulted him. The claimant lost at first instance and again on appeal on the basis that the connection between the expected duties and the employee’s behaviour.
In Cox the court had to consider the relationship between the tortfeasor and the defendant to establish whether it gave rise to vicarious liability; in Mohamud the court needed to look at how close the connection was between the tortious act and the employment status to ascertain whether the employer was responsible (vicariously liable).
The MOJ argued that the prison service was not a business and that the prisoners had no interest in furthering its objectives of rehabilitating prisoners. However, the SC found the prisoners’ activities were an integral part of the prison’s operation. Payment of a wage was not essential. It was just and reasonable for the MOJ to be vicariously liable for the prisoner’s negligent acts in providing those services so the MOJ lost in its appeal.
In Mohamud, the SC held that whilst the employee’s conduct was inexcusable his job was to attend to customer’s enquiries and he was acting within the “field of activities” given to him. His actions in the forecourt were not separate to that although he was clearly abusing his position. Mr Mohamud therefore succeeded in his claim.
Neither of these cases can be considered as ground breaking but the SC’s decision uses sensible language to analyse the test to be applied and perhaps shows that a less constrained approach will be considered in future. Clearly the circumstances and facts of each separate case need to be considered carefully. One wonders whether, in Mohamud’s case, whether the outcome would have been any different had the assault taken place in an area away from the employer’s forecourt and the order not to return to the petrol station not used? I suspect so.