Vicarious liability: recent developments in case-law reviewed
Tina Hart considers two complementary UKSC decisions that have provided the opportunity to review the requirements for making one person responsible for torts committed by another.
About the author
Tina Hart is a principal lecturer in law at Huddersfield University.
Vicarious liability arises when a person or organisation is held responsible for torts committed by another. For example, a negligent driver causes injury to X. X could sue the driver, but instead may opt to sue the driver’s employer. The employer is better placed to meet the claimant’s action because of employers’ liability insurance. It is also felt that vicarious liability ensures that employers will take care in the selection and training of staff. Another justification is that the employer benefits when the employee does well, so should bear the financial burden when the employee causes harm.
This places liability on the innocent employer, that may well have done everything to ensure that the tort in question is not committed. So, in order to redress the balance, there are three main hurdles that the claimant must jump before that liability is transferred. Two recent decisions of the Supreme Court, Cox v Ministry of Justice [2016] UKSC 10: (2016) April CILExJ p26 and Mr A M Mohamud (in substitution for Mr A Mohamud (deceased)) v WM Morrison Supermarkets plc [2016] UKSC 11(2016) May CILExJ p30, have, arguably, made those hurdles considerably easier to navigate.
The three conditions that a claimant must show are, first, that a tort (or crime has been committed), second, that it was committed by an employee and, third, that the tort was committed in the course of employment.
The first requirement merely means that the claimant is able to prove that there has been a breach of some duty or that a valid defence is not available (see Imperial Chemical Industries Ltd v Shatwell [1965] AC 656). Vicarious liability cases, therefore, focus on the second and third requirements.
The Supreme Court has followed the trend of extending what it means to be an employee. In the past, numerous tests were used to determine whether the worker who committed the tort could be classified as an employee under a contract of employment, or an independent contractor engaged under a contract for services.
An employer would only be liable for the wrongdoing of the former. The ‘control test’ based on the principle of master and servant was favoured until the middle of the last century. This required that the employer not only told the worker what to do, but also how to do it. However, this was said to be an outdated view of the workplace, particularly in areas where workers are highly skilled even to the extent of being able to complete tasks that the employer cannot, as in the case of a health authority that employs surgeons (see, for example, Cassidy v Ministry of Health [1951] 2 KB 343). In Catholic Child Welfare Society and others v Various claimants and The Institute of the Brothers of the Christian Schools and others [2012] UKSC 56, Lord Phillips stated that, today, the significance of the control test is that the employer can direct what the employee does not how he does it (para 36). This approach has been endorsed by the decision in Cox.
The integration or organisation test (which replaced the control test) looked at whether the worker was fully integrated into the employer’s organisation (or business) or was merely ancillary to it. This too had its limitations, and in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497, the approach taken was to consider a number of factors that included ‘control’, ‘integration’ and other factors which placed the onus on who bore the economic risks of the work undertaken.
In the wake of a number of child abuse cases, the courts have taken an even more pragmatic approach. Technically, priests are not ‘employed’ by the diocese or the Archbishop. Yet in JGE v Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938, where a Roman Catholic priest committed sexual abuse while visiting a children’s home, it was held that the relationship between the priest and the diocesan trust was akin to one of employment. In reaching this decision, their lordships held that it was fair, just and reasonable to treat the ministry of the Roman Catholic Church as a business carried on by the bishop, where the priest carried on that business under a degree of control by the bishop and whose work was fully integrated into the organisation of that business (para 49).
This reasoning was followed by the Supreme Court in Catholic Child Welfare Society and others above. Although the decision also concerned child abuse, the approach adopted is not confined to those special cases but applies to situations outside of the normal employment relationship (Cox above, per Lord Reed at para 29).
It is against this background that the case of Cox was decided. Mrs Cox worked as a catering manager at HM Prison Swansea. She was injured by the negligence of one of the prisoners who worked in the kitchen. In finding the Ministry of Justice vicariously liable, Lord Reed stated that the Prison Service carries on activities in furtherance of its aims, and that prisoners working in the prison kitchens are integrated into the operation of the prison. Thus, the activities assigned to prisoners form an integral part of its activities. It was also noted that the prisoners work under the direction (ie, control) of prison staff.
Cox, therefore, confirms that vicarious liability applies even where there is no contract of employment, but where the relationship between the defendant and tortfeasor is one that is ‘akin to employment’ (para 26).
The decision in Mohamud complements that of Cox. While Cox dealt with the employment requirement, Mohamud concerns the connection between the wrongdoer's act and their employment. The facts were that the employee in question was on duty in the kiosk of the petrol station of the respondent’s supermarket. The claimant, who was of Somali origin, was a customer. He asked the employee whether it was possible to print off documents from his USB stick. The claimant, who objected to the response: ‘We don’t do such shit’ was met with ‘foul, racist and threatening language’ and ordered to leave the premises (para 5). The employee followed the claimant out to his car, and before he could drive off the employee opened the front passenger door of Mr Mohamud’s car, subjecting him to further threats and abuse. On being told to get out of the car, the employee hit the claimant on the head. Mr Mohamud got out of his car to ensure that the passenger door was closed. He was then subjected to a serious attack, involving punches and kicks while he lay curled up on the station forecourt trying to protect his head. In carrying out the attack, the employee had ignored instructions from his supervisor, who subsequently came to restrain him (para 5).
In a comprehensive analysis of the development of vicarious liability, Lord Toulson (with whom the other Supreme Court justices agreed) held Morrison Supermarkets plc liable for the wrongdoing of its employee. In considering whether an employee’s wrongdoing took place ‘in the course of employment’ , courts had in the past adopted the Salmond test, which defined the wrongful act by a servant in the course of employment as ‘either (a) a wrong act authorised by the master or (b) a wrongful and unauthorised mode of doing some act authorised by the master’.1 This has been replaced by the ‘closeness of connection’ test from Lister and others v Helsey Hall Ltd [2001] UKHL 22. In Lister and others, the House of Lords had to apply the doctrine of vicarious liability to the warden of a school boarding house who sexually abused the children in his care. Clearly the Salmond test could not be ‘stretched’ to apply: ‘ abusing children cannot properly be described as a mode of caring for children (para 59). Instead Lord Steyn asked the broader question of whether the warden’s action was so ‘closely connected’ with his employment that it would be just to hold his employers liable (para 28). His lordship concluded that since the employers undertook the care of the children through the warden, who abused the claimants, the employers were liable. There was a close connection between his employment and the assaults that took place.
In applying the ‘closeness of connection’ test, the lower courts in Mohamud, had found that there was no close connection between the employee’s action and his duties. The Court of Appeal stated that the employee was not given duties involving the clear possibility of confrontation, or placed in a situation where an outbreak of violence was likely. The interaction with customers required in his work was not enough to make his employer liable for his use of violence against the claimant ([ 2014] EWCA Civ 116).
The Supreme Court disagreed and reversed that decision. Lord Toulson stated that to determine vicarious liability, two questions had to be asked. The first being what functions or ‘field of activities’ have been entrusted to the employee (para 9). Second, consider whether there is sufficient connection between his position and his wrongful conduct (para 43). The employee’s job was to attend to customers and respond to inquiries. His conduct in responding in a ‘foul mouthed way’ and telling the claimant to leave was inexcusable but within ‘the field of activities’ assigned to him (para 47). What happened afterwards was an ‘unbroken sequence of events’ (para 47) By ordering the claimant to leave and not come back to the employer’s premises, the employee was purporting to act about his employer's business. While it was a gross abuse of his position, it was in connection with the business in which he was employed to serve customers.
Thus, in Mohamud, the Supreme Court has confirmed the ‘closeness of connection’ test. Lord Dyson stated that it was ‘rooted in justice’ (para 53). Furthermore, while the test was imprecise, this imprecision would be inevitable given the range of cases where vicarious liability would arise (agreeing with Lord Nicholls in Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48 at para 26).
A catering manager at HM Prison Swansea suffered an accident as a result of a prisoner’s negligence. She injured her back when the prisoner dropped two sacks of rice he had been carrying in the course of working under the terms of the Prison Rules 1999 SI No 728 (which provide for work to be done as a matter of discipline and rehabilitation). A county court judge held that the prison was not vicariously liable for the prisoner’s negligence on the basis that their relationship was not akin to that of employer and employee.
The Court of Appeal allowed an appeal. It concluded that although the relationship differed from a normal employment relationship, in that the prisoners were bound to the Prison Service not by contract but by their sentences and also in that the prisoners’ wages were nominal, those differences rendered the relationship if anything closer than one of employment. The relationship was founded not on mutuality, but on compulsion. Applying the principles laid down in Catholic Child Welfare Society and others v Various claimants and Institute of the Brothers of the Christian Schools and others [2012] UKSC 56; [2013] 2 AC 1, the Supreme Court upheld that decision.
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.
In giving the lead judgment, Lord Toulson first clarified that close connection test has been followed at the highest level and there was nothing wrong with that as such. In the present case, the court had to consider two matters. First, the court must ask what function or field of activities has been entrusted by the employer to the employee. This is to be viewed broadly. Second, the court must decide 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.
Applying the facts of this case to those tests, Lord Toulson reasoned that it was Mr Khan’s job to attend to customers and respond to their inquiries. His conduct in responding to the claimant’s request with abuse was inexcusable, but interacting with customers was within the field of activities assigned to him by his employer. What happened thereafter was an unbroken sequence of events. In clarifying this he explained firstly it is not correct to regard Mr Khan as having metaphorically taken off his uniform the moment he stepped out from behind the counter – he was following up on what he said to the claimant. Secondly, when Mr Khan followed the claimant to his car and told him not to come back to the petrol station that was not something personal between them, but an order to keep away from his employer’s premises. In giving the order he was purporting to act about his employer’s business Mr Khan’s motive in the attack is irrelevant.2
- John Salmond, Law of torts: a treatise on the English law of liability for civil injuries Law of Torts, 1907, Stevens and Haynes at pp 83–84
- See note on 'Immigration update' of this issue